S.S. v. R.K. ( 2023 )

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
22-P-561
S.S.
vs.
R.K.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant R.K. appeals from a G. L. c. 258E harassment
prevention order (HPO) entered against him in 2018, a one-year
extension order entered in 2019, a twenty-five year extension
order entered in 2020, and a 2022 order denying R.K.'s motion to
reconsider the 2020 order. The orders rest primarily on the
plaintiff S.S.'s allegations, implicitly or explicitly credited
to varying degrees by the three different District Court judges
who issued the orders, that R.K. had repeatedly raped her in
2004 and that as a result she still feared him. Seeing no basis
to disturb the judges' credibility determinations and no abuse
of discretion or other error of law, we affirm the 2020 and 2022
orders and dismiss as moot the appeals from the 2018 and 2019
orders.
To obtain the initial HPO, S.S. bore the burden of showing,
by a preponderance of the evidence, that R.K. committed "an act
that . . . by force, threat or duress cause[d] [S.S.] to
involuntarily engage in sexual relations." G. L. c. 258E, § 1.
See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 599-600 (2015). To
obtain an extension of the order, S.S. was required to show that
"there [was] a continued need for the order because the damage
resulting from . . . [the sexual assault] affects [her] even
when further physical attack [or sexual assault] is not
reasonably imminent." Yasmin Y. v. Queshon Q., 101 Mass. App.
Ct. 252, 257 (2022), quoting Vera V. v. Seymour S., 98 Mass.
App. Ct. 315, 317 (2020). Once that burden was met, the court
could "extend the order for any additional time reasonably
necessary to protect the plaintiff." G. L. c. 258E, § 3 (d).
We review an HPO "for an abuse of discretion or other error
of law" (quotations and citations omitted). Yasmin Y., 101
Mass. App. Ct. at 256. We review factual findings for clear
error, see DeMayo v. Quinn, 87 Mass. App. Ct. 115, 116-117
(2015), and we "scrutinize without deference the propriety of
the legal criteria employed by the trial judge and the manner in
which those criteria were applied to the facts." G.B. v. C.A.,
94 Mass. App. Ct. 389, 393 (2018), quoting Iamele v. Asselin,
444 Mass. 734, 741 (2005). However, "[w]e accord the
credibility determinations of the judge who 'heard the testimony
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of the parties . . . [and] observed their demeanor,' the utmost
deference." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3
(2006), quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 929
(1999). "[W]e will not substitute our judgment for that of the
trier of fact." G.B., supra at 393, quoting Iamele, supra at
741. "In a bench trial credibility is 'quintessentially the
domain of the trial judge [so that her] assessment is close to
immune from reversal on appeal except on the most compelling of
showings.'" Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496
(2012), quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536
(1995).
Here, R.K's argument that S.S. failed to meet her burden
rests entirely on an attack on S.S.'s credibility. Although
R.K. has ably mustered a variety of reasons why S.S. should not
be believed, the judges credited her testimony. We will not
second-guess those determinations, nor has R.K. shown that the
judge's key 2020 findings of fact were clearly erroneous.
S.S.'s testimony, even without corroboration, was sufficient
basis to find that the rapes occurred. See Commonwealth v.
Gonzalez Santos, 100 Mass. App. Ct. 1, 3 (2021).
We recognize that, although S.S. testified that she was as
sure of certain 2020 allegations against R.K. as she was of her
original rape allegations, the judge ruling on R.K.'s motion to
reconsider the 2020 order ultimately concluded that R.K.'s
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version of the 2020 events was credible. Nevertheless, the
judge did, and was free to, "continue to find credible [S.S.'s]
testimony about the defendant raping her as a child . . . and
[her] testimony that she continues to fear [R.K.] will kill
her." It is settled that a judge may "accept or reject in whole
or in part the testimony of the witnesses." Learned v.
Hamburger, 245 Mass. 461, 468 (1923). Cf. Commonwealth v. Cruz,
98 Mass. App. Ct. 383, 392 (2020) (jury may believe part of
witness's testimony and reject part, or believe all or reject
all).
The 2020 extension order and the 2022 order denying R.K.'s
motion for reconsideration are affirmed. Because the 2020
extension order is affirmed and the 2018 and 2019 orders are no
longer in effect, there is no effective relief from those orders
available to R.K. Accordingly, the appeals from those two
orders are dismissed as moot.
So ordered.
By the Court (Wolohojian,
Desmond & Sacks, JJ. 1),
Clerk
Entered: October 31, 2023.
1 The panelists are listed in order of seniority.
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