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State v. Heffron

Supreme Court of Maine

July 24, 2018

STATE OF MAINE
v.
RICHARD A. HEFFRON III

          Argued: June 13, 2018

          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

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.

          HJELM, J.

         [¶l] 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 conviction, asserting that his Facebook posts did not violate the protection order. We affirm the judgment.

          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 holding 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 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 have "friends" in common.[5] The content of some of the posts was personal, and 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 then 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 protected person and that this occurred.[6] The court characterized Heffron's use of the social media 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 order 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 directed to the protected 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 protected person except in specifically described circumstances 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 prior actual notice of the existence of the order." State v. Smen, 2006 ME 40, ¶ 8, 895 A.2d 319 (alteration omitted) (quotation marks omitted); see 19-A M.R.S. § 4Oll(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 were a protected form of speech.

         [¶6] Although "contact" is not defined in the protection statutes, see 19-AM.R.S. §§ 4001-4014 (2017), we have explained that "[b]y prohibiting direct or indirect contact, ... an order entered pursuant to section 4OO7(1)(D) instructs a defendant not to meet, connect, or communicate with the protected person, either personally or through 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 "contact" 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 emailing, gesturing from the window of a car, calling the house of the protected person's current romantic partner, 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 which 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 other 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 ...


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