NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-463

COMMONWEALTH

vs.

CELESTE HEDEQUIST.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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 email 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.
2

On appeal, the defendant claims her conviction must be 

vacated because the evidence was insufficient to prove that the 

defendant contacted, harassed, or abused the plaintiff in 

violation of the order, particularly because the contents of the 

defendant's e-mail constituted speech protected by the First 

Amendment. The defendant also contends that the conviction must 

be vacated as there was insufficient evidence for either of 

these alternative theories of proof and the jury were not 

required to designate which theory they unanimously agreed on in 

reaching their verdict.

In addition, the defendant claims the judge erred in 

denying her motion to dismiss the complaint because (1) it was 

unsupported by probable cause, and (2) the clerk-magistrate 

deprived her of her right to be heard.

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. See O'Brien v. Borowski, 461 Mass. 415, 

425 (2012) (abrogated on other grounds by Seney v. Morhy, 467 

Mass. 58, 61-62 [2014]).
3

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. Vizcarrondo, 427 Mass. 392, 398 (1998).

Finally, we conclude the judge did not err in denying the 

defendant's motion to dismiss the complaint.1

Background. We summarize the evidence presented at the 

trial in the light most favorable to the Commonwealth, reserving 

some details for later discussion.

In 2016, the defendant and her husband had four children 

between the ages of six and twelve years old in a Massachusetts 

school district. By December 2016, the defendant maintained an 

adversarial relationship with members of the school committee

and school educators and administrative staff, including D.L.,

for at least three reasons. First, the defendant was 

dissatisfied with the school district's response to her formal 

complaint that one of her children was being bullied at school. 

Second, the defendant responded to a school principal's 

discipline of one of her children by confronting the principal 

1 On appeal, the defendant also claims her conviction must 

be reversed on grounds that the judge abused his discretion 

concerning two evidentiary issues, and because the 

Commonwealth's closing argument was inflammatory. We do not 

resolve these issues because we reverse the conviction on other 

grounds.
4

in a manner the school found alarming.2 Third, the defendant and 

her husband opposed a no-trespass order the school had obtained, 

first against the defendant, and eventually against her entire

family.

The defendant and her husband met with D.L. on December 22, 

2016, to discuss these ongoing issues. At the end of the 

meeting, the defendant, ostensibly upset with D.L., stated she 

wanted time with D.L.'s children to torture them.3

Based on this statement, as well as what D.L. described as 

"a continuing pattern of harassing e-mails threatening my 

family, disparaging me . . . ," he sought a harassment 

prevention order against the defendant on February 10, 2017. An

order pursuant to G. L. c. 258E issued, and the order was served 

on the defendant on the same day. The order prohibited the 

defendant from contacting, abusing, or harassing D.L.

About nine months later, in November 2017, the defendant 

and her husband appealed to M.K., a member of the school 

committee, to rescind the school's no-trespass order. On 

2 D.L. testified that the defendant, accompanied by two of 

her children, pounded on the principal's school window after 

school hours, and chanted to her, "You evil bitch." This 

encounter was admitted as a prior bad act of the defendant. The 

judge allowed its admission to explain the school

administration's rationale for obtaining a no-trespass order 

against the defendant and her family.

3 This statement was also admitted as a prior bad act.
5

November 18, 2017, M.K. sent an e-mail to the defendant advising 

her that the no-trespass order would remain in effect. Notably, 

M.K. copied D.L. and another school committee member by adding 

their respective e-mail addresses in the "Cc" field in his email to the defendant.

The defendant replied, via e-mail, to M.K. that same day by 

stating:

"Dear [M.K.], 

"I am sorry to report that [D.L.]'s order is not 

legal, violates due process, is abusive, among other 

things.

"I also noticed that you copied [D.L.] on your e-mail 

to me. Please do not attempt again to have me respond 

accidentally to a group e-mail with him copied on it 

and in violation of any HPO.

"This again underscores your manipulation and your 

pattern of deceptive and abusive behavior as you know 

that there is to be no contact between him and myself.

"Take care,

"Celeste Hedequist." (Emphasis added.)4

Although the defendant added additional e-mail addresses to 

the "Cc" field in her reply e-mail to M.K., she did not include 

D.L.'s address in the Cc field.

At a meeting in December 2017, the defendant's husband

again appealed to M.K. to rescind the school's no-trespass 

4 Both M.K. and D.L. testified they were familiar with the 

defendant's e-mail address based on prior e-mail communications 

with her.
6

order. On December 15, 2017, the defendant reacted to this 

meeting by sending another e-mail to M.K. through the same 

November 18, 2017 e-mail chain described above. The defendant 

copied D.L. and a school committee member in this e-mail to M.K. 

The defendant's December 15, 2017 e-mail, which served as the 

basis for the criminal complaint, stated:

"[M.K.], 

"Don't ever smirk at my husband again. We are going 

to do to your children what you have done to ours. 

You are so creepy, and Dan said you smell like feces. 

You are so gross. Go take care of your poor, poor 

special child. I hear your face gets red like a 

tomato when you['re] mad. Is that from all the 

alcohol you drink[?] When your children start to feel 

what ours have felt, then you will be a better person. 

We will help you, [M.K.], you fucking wack job 

bastard."

D.L. forwarded this e-mail to police on December 19, 2017.

Discussion. 1. Sufficiency of the evidence. The 

defendant claims that the contents of the December 15, 2017 email were protected as free speech and as such, could not

constitute either an act of abuse or harassment, or contact in 

violation of the order.

The Commonwealth counters that the evidence was sufficient 

to show the defendant violated the order, first, by making 

intentional contact by copying D.L. on her e-mail to M.K.; and 

second, because her speech constituted a true threat to D.L., 

and thus fell outside the protections of the First Amendment.
7

In reviewing a claim that the verdict was not supported by 

sufficient evidence, the "question is whether after viewing the 

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt." Commonwealth v. 

Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. 

Virginia, 443 U.S. 307, 318-319 (1979).

To convict a defendant of violating a harassment prevention 

order, the Commonwealth must prove that (1) a court had issued 

such an order; (2) the order was in effect on the date that the 

violation allegedly occurred; (3) the defendant knew the terms 

of the order; and (4) the defendant violated the order. 

Commonwealth v. Kurko, 95 Mass. App. Ct. 719, 721 (2019). The 

issues on appeal pertain only to the element of whether the 

defendant violated the order.

As discussed in more detail below, the jury instructions

for the single count of violation of the order provided 

alternative theories of guilt by presenting the jury with the 

choice whether the defendant committed the crime by either (1)

abusing or harassing D.L., or (2) contacting D.L. Because we do 

not know which theory the jury relied on in reaching their 

general verdict, we must examine the sufficiency of the evidence 

underlying each alternate theory of proof. See, e.g., 

Commonwealth v. Kozubal, 488 Mass. 575, 594 (2021) (jury 
8

instruction allowing for alternative grounds of proof, without 

requiring jury to indicate on which they relied, did not amount 

to reversible error because evidence for each ground was 

sufficient to support verdict).

a. The no-contact provision. The order against the 

defendant included the following no-contact provision:

"You are ordered not to contact the Plaintiff either in 

person, by telephone, in writing or otherwise, either 

directly or through someone else, and to stay at least [one 

hundred] yards from the Plaintiff even if the Plaintiff 

seems to allow or request contact. The only exception to 

this Order is that you may send to the Plaintiff by mail or 

by sheriff or other authorized officer copies of papers 

filed with the court when that is requires by statue or 

court rule."

Such an order "mandates that the defendant not communicate by 

any means with the protected party." Commonwealth v. Finase, 

435 Mass. 310, 314 (2001). The question whether the defendant 

violated the order by contacting D.L. is a distinct and separate 

inquiry from whether the contents of the message constituted 

protected speech. See Commonwealth v. Thompson, 45 Mass. App. 

Ct. 523, 525 (1998) ("The harm created by contact from an abuser 

. . . is distinct from and unrelated to any message the abuser 

might be seeking to send").

We reject the defendant's claim that the act of copying 

D.L. on an e-mail constituted conduct that possessed sufficient 

communicative character to be protected by the First Amendment. 

See Texas v. Johnson, 491 U.S. 397, 404 (1989). It is the fact 
9

that D.L. received the e-mail, not any idea expressed within the 

e-mail, that violated the no-contact provision of the order. 

The order would equally have been violated by an e-mail devoid 

of text.

We thus conclude that the defendant's act of copying an email to D.L. did not constitute protected speech, but was 

instead an act which would qualify under the broad definition of 

contact prohibited by the order. See, e.g., Commonwealth v. 

Russell, 46 Mass. App. Ct. 307, 309-310 (1999) (evidence of 

unaccepted collect calls from incarcerated defendant to his wife 

were sufficient to establish violation of "no contact" order 

regardless of content of calls); Commonwealth v. Mendonca, 50 

Mass. App. Ct. 684, 688 (2001) ("violation of an order not to 

contact by telephone is established by proof of unexcused 

conversation with a protected party over the telephone and 

without proof that the protected party was placed in fear").

Accordingly, to prove a violation of the no-contact 

provision of the order the Commonwealth was required to produce 

sufficient evidence of such contact, but not that the contents 

of the contact amounted to either abuse or harassment.

Acknowledging the Legislature "did not intend 'to make 

accidents and mistakes crimes'" for the purposes of "no contact" 

orders, Finase, 435 Mass. at 315, quoting Commonwealth v. 

Collier, 427 Mass. 385, 388 (1998), we conclude the evidence was 
10

sufficient for a rational jury to find that the defendant 

intentionally made contact with D.L. in violation of the order 

by copying his e-mail address to the defendant's December 15, 

2017 e-mail to M.K. The evidence demonstrated the defendant was 

familiar with the function and consequences of including an email address in the "Cc" field, as she, in her November 18, 2017 

e-mail reply, reprimanded M.K. for exposing her to a potential 

violation of the order by copying D.L.'s address in his e-mail 

to her. The jury could also reasonably infer that the defendant 

had intentionally removed D.L.'s e-mail address from the list of 

copied recipients in her reply to M.K. on November 18, 2017, to 

avoid violating the order's no-contact provision.

However, when the defendant, on December 15, 2017, sent an 

e-mail to M.K. through the November 18, 2017 e-mail thread 

discussed above, the evidence supported the jury concluding that 

the defendant modified the existing intended recipients by 

entering D.L.'s e-mail address in the "Cc" field.5 The jury was 

free to reject the defendant's claim that she accidentally 

copied D.L., and instead reasonably conclude based on the 

circumstantial evidence that the defendant intentionally added 

5 The defendant also added a new school committee member to 

the "To" section of the e-mail.
11

D.L.'s e-mail address to her e-mail to M.K.6 See Collier, 427 

Mass. at 389-390; Russell, 46 Mass. App. Ct. at 310.

Thus, we conclude the defendant's act of copying D.L. in 

her e-mail to M.K. was sufficient to constitute a violation of 

the "no contact" provision of the order. Finase, 435 Mass. at 

314. See Russell, 46 Mass. App. Ct. at 309–310.

b. Refrain from harassment or abuse condition. It is 

undisputed that the contents of the defendant's December 15, 

2017 e-mail copied to D.L. constituted speech. "[T]he 

Legislature crafted the civil harassment act, G. L. c. 258E, 

with the intent that the definition of harassment exclude 

constitutionally protected speech . . . ." O'Brien, 461 Mass. 

at 425. For speech alone to constitute sufficient evidence of 

either harassment or abuse under G. L. c. 258E, the speech must 

not be protected by the First Amendment. Id. at 422, 427-429. 

"While most speech is protected from government regulation by 

the First Amendment to the United States Constitution and art. 

16 of the Massachusetts Declaration of Rights, as amended by

art. 77 of the Amendments to the Massachusetts Constitution, 

6 At the defendant's request, the judge instructed the jury 

that the Commonwealth had the burden of proving "the alleged 

violation did not arise by accident, unknowingly or through

inadvertence." See Commonwealth v. Podkowka, 445 Mass. 692, 699 

(2006) ("Accident . . . is treated as if it is an affirmative 

defense, which, when it negates an essential element of a crime 

. . . must be disproved by the Commonwealth beyond a reasonable 

doubt" [citations omitted]).
12

there are 'certain well-defined and narrowly limited classes of 

speech' that are not protected," which include "true threats" 

and "fighting words"7 (citations omitted). Id. at 422. Thus, 

speech that constitutes "true threats," as relevant here, is 

constitutionally unprotected and can amount to harassment or 

abuse under G. L. c. 258E. Id. at 425.

For speech to rise to the level of a "true threat," the 

speaker must "[mean] to communicate a serious expression of an 

intent to commit an act of unlawful violence to a particular 

individual or group of individuals." O'Brien, 461 Mass. at 423, 

quoting Virginia v. Black, 538 U.S. 343, 359-360 (2003). The 

"'true threat' doctrine applies not only to direct threats of 

imminent physical harm, but to words . . . that -- taking into 

account the context in which they arise -- cause the victim to 

fear such harm now or in the future and evince intent on the 

part of the speaker . . . to cause such fear." O'Brien, supra

at 425.

"In the usual case, whether a communication constitutes a 

threat or a true threat is a matter to be decided by the trier 

7 Speech amounting to "fighting words" is "limited to words 

that are likely to provoke a fight: face-to-face personal 

insults that are so personally abusive that they are plainly 

likely to provoke a violent reaction and cause a breach of the 

peace." O'Brien, 461 Mass. at 423. Because the Commonwealth 

does not contend the defendant's e-mail to M.K. constituted 

fighting words, our review is limited to whether the 

communication amounted to a "true threat."
13

of fact" (quotation and citation omitted).8 Commonwealth v. 

Bigelow, 475 Mass. 554, 567–568 (2016).

The Commonwealth argues that the contents of the 

defendant's e-mail, placed in context of her prior statement she 

made concerning D.L.'s children, constituted a true threat to 

D.L. We are not persuaded.

Examining the defendant's e-mail in the context of her 

conduct preceding it, her statements as directed to M.K. cannot 

reasonably be construed as a serious expression of an intent to 

cause physical harm to D.L. or his children, but rather 

represented a hyperbolic expression of her frustration with the 

school administration over a myriad of ongoing issues. Compare, 

e.g., United States v. Fulmer, 108 F.3d 1486, 1490-1492 (1st 

Cir. 1997) (defendant's voicemail message to agent that "[t]he 

silver bullets are coming" amounted to sufficient evidence of 

"true threat"), with Watts v. United States, 394 U.S. 705, 706-

708 (1969) (defendant's alleged statement that he would refuse 

induction into Armed Forces and "[i]f they ever make me carry a 

rifle the first man I want to get in my sights is L.B.J." 

8 "[A] court may properly dismiss an indictment as a matter 

of law if it concludes that no reasonable jury could find that 

the alleged communication constitutes a threat or a true 

threat." Bigelow, 475 Mass. at 567-568, quoting United States

v. Stock, 728 F.3d 287, 298 (3d Cir. 2013).
14

constituted "political hyperbole," rather than "true threat"

[quotation omitted]).

We allow that the contents of the defendant's e-mail to 

M.K. were offensive, and that the words expressed failed to 

represent a reasonable attempt to respectfully communicate a 

position or dispute concerning the education of her children.

However, in determining whether speech constitutes a "true 

threat," thus forfeiting constitutional protection, our 

precedent requires either an explicit expression of the intent 

to commit an act of violence to the victim, or evidence of 

context that allows for a less explicitly threatening statement 

to evince such intent to commit violence, nonetheless. O'Brien, 

461 Mass. at 424-425, citing Commonwealth v. Chou, 433 Mass. 

229, 236 (2001). It is undisputed that the defendant's e-mail 

does not contain an explicit threat to harm either D.L. or his 

children. The issue is whether the contents of the e-mail, 

given the history of animus the defendant had toward D.L., 

allowed a rational jury to conclude the statement amounted to a 

true threat.

This court provided an example of sufficient context 

present to support an inference that speech constituted a "true 

threat" in J.C. v. J.H., 92 Mass. App. Ct. 224, 225-229 (2017). 

This court concluded that a defendant's statements to the 

plaintiff of a restraining order that included "[you] should be 
15

scared," "bitch," "[you will] pay the consequences," and that 

"[t]his will end badly for [you]" amounted to sufficient 

evidence of true threats when viewed in context of the defendant

refusing to stop following and contacting the victim over an 

extended period of time, despite admonitions from law 

enforcement. Id.9

Such context is lacking here. We disagree with the 

Commonwealth that the defendant's prior statement that she 

wanted to torture D.L.'s children provided sufficient context to 

support the reasonable inference that, by copying D.L. in her email to M.K., she intended to convey an intent to physically 

harm D.L. or his children.

Instead, the evidence supported the inference that the 

defendant, upset by the school committee's refusal to rescind 

the no-trespass order, lashed out at M.K., as she had done 

9 The following cases provide further examples of sufficient 

evidence of speech amounting to true threats: Chou, 433 Mass. 

at 235-237 (defendant's flyers that included sexually charged 

language and stated victim is missing constituted "true threat,"

as "defendant's language had no expressive purpose but was 

instead, intended to 'get back' at the victim by placing her in 

fear that she might suffer some sexual harm or wind up among the

'missing'"); Commonwealth v. Sholley, 432 Mass. 721, 725-727 

(2000) (defendant's statement "Watch out, Counselor," to 

assistant district attorney, amounted to "true threat" when 

considering defendant's demeanor, tone of voice, and predictions 

of "war" and "bloodshed"); A.S.R. v. A.K.A., 92 Mass. App. Ct. 

270, 278-280 (2017) (defendant's statements to her former 

boyfriend that "she fantasized about killing [him]," constituted

"true threat").
16

previously to D.L., by making comments about subjecting his 

children to the bullying that she believed her child had 

encountered at school. Although the contents of the defendant's 

e-mail to M.K. may constitute harassment in the colloquial 

sense, they did not rise to the level of a true threat. See 

Seney, 467 Mass. at 59 & n.2, 63-64 (e-mail sent by little 

league player's mother to head coach describing plaintiff "in 

unflattering terms" and threatening to "forward this email along 

to the rest of the team if these issues are not resolved" did 

not amount to true threat sufficient for act of harassment

"because, at the very least, it was not directed at him," even 

when considered in context of defendant's other explicit threats 

to "punch [plaintiff] in the face" and "break both of [his] 

knees"); Van Liew v. Stansfield, 474 Mass. 31, 33, 39 (2016) 

(finding phone call where defendant yelled that plaintiff was 

"wrong, uneducated or stupid" did not amount to "'true threat' 

of imminent physical harm or words that would cause someone to 

fear such harm" even considering defendant had previously 

"threatened" to "com[e] after" victim [quotation and citation 

omitted]).

We further conclude there was insufficient evidence to 

persuade a rational fact finder that the e-mail caused D.L. to 

fear that the defendant intended to commit an act of unlawful 

violence to him or his children. D.L. testified that, four days 
17

after being copied on the defendant's December 15, 2017 e-mail, 

he forwarded it to the police "[b]ecause [he] felt like it was a 

violation of [his] HPO." When the assistant district attorney 

asked him if the e-mail "cause[d] [him] any personal concerns," 

D.L. responded that it did because "[a]ny contact with [the 

defendant] causes [him] concern"; he was not asked to elaborate. 

While it is understandable that the defendant's e-mail to M.K.

caused D.L. personal distress, his expression of concern did not 

rise to the level of fear of physical harm required to meet the 

standard set forth for harassment under G. L. c. 258E. See Van 

Liew, 474 Mass. at 38-39; C.E.R. v. P.C., 91 Mass. App. Ct. 124, 

127-128 (2017) (plaintiff's testimony that defendant's 

"harassing and abusive" conduct caused her "stress and anxiety" 

was insufficient evidence that act "cause[d] her fear" of 

physical harm sufficient for harassment).10

c. Jury instructions. Our conclusion that the evidence 

was insufficient for a rational jury to find the defendant's email amounted to harassment or abuse requires us to set aside 

the verdict, even though there was sufficient evidence the 

10 Because we conclude the contents of the defendant's email did not constitute a true threat, and thus cannot form the 

basis for a violation of the order, we need not consider whether 

the contents sufficiently related to M.K.'s role as an elected 

member of the school committee, and thus qualified as protected 

political speech. See Bigelow, 475 Mass. at 567-568; Van Liew, 

474 Mass. at 38.
18

defendant contacted D.L. in violation of the order, because 

"[i]f the evidence presented to the jury would warrant a 

conviction on one ground, but not on another, and it is 

impossible to tell on which ground the jury relied, the verdict 

must be set aside on appeal" (citation omitted).11 Commonwealth

v. Fragata, 480 Mass. 121, 129-130 (2018). This rule applies 

when the grounds for conviction presented in a single charge may 

be sufficiently distinct from each other to constitute different 

factual bases, and either ground serves as an independent basis 

for the conviction. Commonwealth v. Rollins, 470 Mass. 66, 78-

79 (2014) (setting aside defendant's conviction of one count of 

possession of child pornography where it was impossible for 

court to discern which of two photographs -- only one of which 

met statutory definition of pornography -- submitted to jury 

served as premise for their verdict).

For example, in Commonwealth v. Johnson, 45 Mass. App. Ct. 

473, 475-478 (1998), this court reversed a conviction of 

violating an abuse protective order, pursuant to G. L. c. 209A,

because the jury instruction permitted a conviction based on a 

11 We need not decide whether the defendant's objection to 

the judge's instruction on harassment preserved this issue,

considering our conclusion that the uncertainty of which theory 

the jury based their verdict created a substantial risk of a 

miscarriage of justice that requires reversal. See Commonwealth

v. Rollins, 470 Mass. 66, 78-79 (2014).
19

finding that the defendant violated the order "by abusing [the 

victim], '. . . and/or [by] contacting [her],'" where contact 

was not prohibited by the order. This court concluded this

instruction created a substantial risk of a miscarriage of 

justice. Id.

Here, the judge instructed the jury that they could convict 

the defendant if they found the Commonwealth met its burden of 

proving that "the defendant violated the order by abusing or 

harassing [D.L.], or contacting [D.L.] directly or indirectly

. . . ."12 The issue whether the contents of the defendant's email constituted a true threat, and as such violated the order 

to refrain from harassing or abusing D.L., is a sufficiently 

distinct course of conduct, requiring different elements of 

proof, from the issue whether the defendant violated the nocontact condition by intentionally copying D.L. in her e-mail to 

M.K. See, e.g., Fragata, 480 Mass. at 129-130 (evidence of 

defendant's actions of (1) preventing victim from calling 911, 

and (2) preventing victim from leaving her apartment constituted 

12 The assistant district attorney asked the jury to find 

the defendant guilty of both contacting and harassing D.L.

during the opening statement and closing argument. We note 

that, "[w]here, as here, multiple theories of criminal liability 

[were] presented to a jury, the Commonwealth would be well 

advised to request a special verdict indicating the precise 

basis for any conviction to avoid potentially needless 

reversals." Commonwealth v. Manzelli, 68 Mass. App. Ct. 691, 

695 n.8 (2007).
20

alternative ground to establish elements of witness 

intimidation); Rollins, 470 Mass. at 78-79; Johnson, 45 Mass. 

App. Ct. at 475-478. Contrast Commonwealth v. Oquendo, 83 Mass. 

App. Ct. 190, 193–194 (2013) (force and threat of bodily injury 

alternative ways to prove single element that defendant 

compelled rape victim to submit, and not separate theories of 

guilt).

Because the evidence of harassment or abuse was 

insufficient, the verdict must be set aside. The Commonwealth 

may retry the defendant on the ground that the defendant

contacted D.L. in violation of the order, considering sufficient 

evidence was introduced to support a conviction on that basis.13 

See Fragata, 480 Mass. at 130.

2. Motion to dismiss the complaint. We reject the 

defendant's claim that the judge erred by denying her motion to 

dismiss the complaint because (1) the clerk-magistrate failed to 

consider the defendant's evidence as a complete defense to 

probable cause that she violated the order; and (2) the clerk13 We note the judge did not instruct the jury that the 

Commonwealth bore the burden to prove that the speech at issue 

in the defendant's e-mail qualified as constitutionally 

unprotected speech that could constitute harassment. See

Bigelow, 475 Mass. at 567–568. The defendant raised no 

objection to the absence of such instructions at trial, nor does 

she raise the issue on appeal. The issue therefore is not 

before us.
21

magistrate denied the defendant's right to be heard by refusing 

to allow the defendant's husband to testify.

"After the issuance of a complaint, a motion to dismiss 

will lie for a failure to present sufficient evidence to the 

clerk-magistrate (or judge), for a violation of the integrity of 

the proceeding, or for any other challenge to the validity of 

the complaint" (citations omitted). Commonwealth v. 

DiBennadetto, 436 Mass. 310, 313 (2002). We review a challenge 

to the sufficiency of probable cause supporting the complaint de 

novo, assessing the evidence submitted to the clerk-magistrate 

in the light most favorable to the Commonwealth. See 

Commonwealth v. Leonardo L., 100 Mass. App. Ct. 109, 111 (2021).

At the show cause hearing, a police officer read an 

incident report detailing evidence of D.L.'s order against the 

defendant and the text of the e-mail the defendant allegedly 

copied to D.L. After the officer concluded his presentation of 

the evidence, the defendant testified, in summary, that when 

replying to M.K.'s e-mail, she accidentally copied D.L. She did 

not deny that she had sent the e-mail.

Although the clerk-magistrate denied the defendant's 

request to have her husband testify, she allowed the defendant's 

husband to speak to the defendant on the record. In speaking to 

her husband, the defendant sought to confirm her account that 
22

her "reply all" to M.K.'s e-mail constituted an inadvertent 

contact with D.L.

We conclude ample probable cause supported the complaint 

against the defendant. Contrary to the defendant's argument, 

the clerk-magistrate does not act as a fact finder, but rather 

determines whether there is probable cause to issue a complaint 

based on finding "reasonably trustworthy information . . . 

sufficient to warrant a prudent [person] in believing that the 

defendant had committed . . . an offense" (citation omitted). 

Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013).

Even assuming arguendo that the clerk-magistrate erred by 

declining to consider whether the defendant's claim of accident 

established a complete defense, her probable cause determination 

was still correct. Especially as the defendant did not dispute 

the accuracy of the police report and instead only offered an 

affirmative defense, the officer's testimony and the order 

itself served as "reasonably trustworthy information" sufficient 

to allow the clerk-magistrate to find ample probable cause the 

defendant violated the no-contact provision of the order by 

copying D.L. on her e-mail to M.K. Bell, 83 Mass. App. Ct. at 

63. See Commonwealth v. Irick, 58 Mass. App. Ct. 129, 132 

(2003) ("at a show cause hearing it is not enough for the 

accused to contradict, or even cast some doubt on, the 

complainant's statements"). The clerk-magistrate was bound to 
23

view the evidence in the light most favorable to the 

Commonwealth, see Leonardo L., 100 Mass. App. Ct. at 111, and 

was not required to credit the defendant's claim of accident. 

See Irick, supra at 132.

Furthermore, the clerk-magistrate's denial of the 

defendant's request for her husband to testify did not deprive 

the defendant's right to be heard considering her husband's 

testimony would have been cumulative.14 "[T]he clerk-magistrate 

retains discretion to limit the number of defense witnesses to 

prevent cumulative or irrelevant testimony." DiBennadetto, 436 

Mass. at 314. Here, the clerk-magistrate, decided that 

testimony from the defendant's husband was unnecessary to her 

probable cause determination only after hearing the defendant's 

admission to the allegations in the complaint. Thus, if 

allowed, the testimony of the defendant's husband would have 

been inconsequential to the clerk-magistrate's probable cause 

determination. We are therefore satisfied that the defendant 

was properly afforded the "right to offer . . . her version of 

events" at the hearing, providing the defendant the full 

opportunity to be heard. Boston Globe Media Partners, LLC v. 

Chief Justice of the Trial Court, 483 Mass. 80, 85 (2019).

14 It is evident from his on-the-record conversation with 

the defendant that the defendant's husband, if allowed to 

testify, would have opined that the defendant accidentally 

copied her e-mail to D.L.
24

Even if we were to find the clerk-magistrate erred by 

declining to consider the defendant's accident defense and 

refusing to allow her husband to testify, we see no compelling 

reason to invalidate the complaint. The defendant was convicted 

of violating a harassment prevention order after having "the 

benefit of a full trial with jury . . . which was more than 

adequate to safeguard the defendant's rights" against any of the 

claimed errors made at the probable cause hearing. Irick, 58 

Mass. App. Ct. at 133. "Because the defendant went to trial and 

was found guilty, there is no basis for a claim of prejudice 

resulting from a pretrial determination of probable cause." 

Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 109-110 (2013),

citing Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 622

(2011).

3. Other claims of error. Because we reverse on the 

grounds as stated, we do not reach the defendant's claims that 

the judge erred by admitting evidence of the defendant's prior 

bad acts, and excluding impeachment evidence pertaining to D.L., 

as these issues will not necessarily arise at a retrial based 

solely on the alleged violation of the order's no-contact 

provision. The defendant also claims that the prosecutor's

"inflammatory" closing argument amounted to prejudicial error 

requiring reversal. While we need not decide these issues, we 

do take the opportunity to remind the Commonwealth that misuse 
25

of prior bad act evidence may be grounds for reversal. See 

Commonwealth v. Howard, 469 Mass. 721, 744 (2014), S.C., 479 

Mass. 52 (2018) ("using [evidence of] bad acts directly as 

propensity evidence [in closing argument] is forbidden and 

prejudicial").

Conclusion. The judgment is reversed, and the verdict is 

set aside.

So ordered.

By the Court (Milkey, Sacks & 

Smyth, JJ.15),

Clerk

Entered: August 26, 2024.

15 The panelists are listed in order of seniority.