Thursday, May 7, 2015

NCIS star Pauley Perrette's Ex Loses Harassing Tweet Appeal


The criminal conviction of “NCIS” star Pauley Perrette’s ex-husband for sending harassing “tweets” about her has been upheld in Los Angeles.

Perrette had a restraining order against ex-hubby Francis “Coyote” Shivers when they were involved in an incident at a Hollywood sushi restaurant March 20, 2012.

Laura Pauley Perrette, who married Shivers in 2000 and they divorced in 2004, told police Shivers violated the court order at the sushi joint, and then harassed her on Twitter.

Later found guilty by a jury of two misdemeanors, Shivers appealed his conviction for violating the restraining order and for “electronically distributing a harassing message.”

According to court records the tweets were posted July 4th and 8th of 2012, stating: “HAPPY FOURTH OF JULY EVERYONE. SEE YOU ON MY USUAL HANGOUT, CAHUENGA!! (If you see my stalker Pauley Perrette follow me there call LAPD!!!” and “Speakin of #Cahuenga i’ll be there 2nite as usual. If you see my stalker #NCIS Pauley Perrette follow me there report her to LAPD immediately!”

The Perrette-Shivers case becomes important because the state Supreme Court is allowing the appeals ruling to be used by judges hearing electronic harassment cases in California.

In interpreting the state’s harassing message statute, the judges said such messages or tweets do not have to cause “actual” harm, only create the “likelihood” of harm.

Perrette, 46, plays the role of eccentric forensic scientist “Abby Sciuto” on the hit TV crime drama based on the Naval Criminal Investigative Service. Shivers had a role in the 1995 movie, “Empire Records.”

***

According to court records, here is what happened in the restaurant.

Perrette and fiancé, Thomas Arklie, were in the restaurant on Franklin Avenue in Hollywood, sitting at a table. At about 7:30 p.m., Shivers and his wife, Mayra Dias Gomes, entered. The only available table was the one next to where Perrette and Arklie sat. As Shivers and his wife were escorted by a waitress toward Perrette’s table, Shivers told the waitress, “I cannot sit over there.”

At Shivers’s trial in Los Angeles Superior Court, Perrette and Arklie testified that Shivers “got within eight inches to one foot from Perrette’s face, and smirked and smiled.” Perrette became very upset, shrunk into her chair, and covered her face with her hands.

Shivers pulled out his cell phone, held it out towards Perrette, and walked backwards while appearing to use the phone’s video function. Her fiancé, Arklie, got in front of the table to block Shivers’s view of Perrette. A dozen feet from Shivers, Arklie, said, “You are not allowed to do that here.” Arklie also held his hand up to avoid being taped. He denied threatening Shivers.

As Shivers backed away, pointing his camera in Perrette’s direction, he screamed, “I have a restraining order against her. I have a restraining order against her.”

Video captured by Shivers’s phone camera was taken from near the restaurant’s entrance. It showed the table where Perrette and Arklie were sitting.

In other words, jurors likely thought that he saw her and could have left. The restraining order required him to stay 1,000 yards from his former wife.
 
On the video, Shivers pointed to the table and stated, “He just threatened me,” an apparent reference to Arklie. “He just came at me threatening me.”

His wife, Gomes, responded, “I know, I saw.”

Shivers asked, “You saw?” to which Gomes responded, “Yeah.”

Shivers then shouted, “Could you tell the manager here that I have a restraining order on that other person,” and “He just came at me threatening me.”

Other restaurant guests turned around to see why Shivers was shouting. Perrette was “extremely embarrassed” by the commotion. She then called 911 to report a violation of the restraining order. Before police arrived, Shivers left.

His wife testified that when she and Shivers reached the table next to Perrette, Shivers immediately returned to the front of the restaurant and did not get near Perrette’s table.

She also testified she felt threatened by Arklie, “the way that he suddenly got up from the table and came at us seemed . . . threatening.”

After hearing both sides, a jury convicted Shivers of violating the restraining order. Jurors also found him guilty of transmitting a harassing electronic message, a tweet.

In his appeal, Shivers contended Los Angeles Superior Court Judge Kathryn A. Solórzano erroneously failed to instruct the jury on self‑defense, after jurors asked a question about it. He also claimed there was insufficient evidence for his conviction for a harassing tweet.

The three-judge appeals division of Los Angeles Superior Court rejected his arguments, and affirmed his convictions. He faces up to a year in jail, but probation is more likely.

For those keeping gossipy Hollywood Film Star score, it is Pauley Perrette 1, Francis “Coyote” Shivers 0. But the real significance of the case is in the emerging law of electronic harassment, especially on Facebook and Twitter, in California.

***

In their discussion of the charge of harassing messages, the judges noted that as a result of Shivers’s tweets a third party “searching for Perrette’s name could find his tweets. Also, by using a hashtag for the show (“#NCIS”) and the location (“#Cahuenga”), third parties searching on Twitter would also come across” Shivers’s tweets about Perrette.

“Several of the tweets were made in response to persons who had read defendant’s tweets, and other tweets had been retweeted by third parties, indicating to defendant that third parties were accessing the information he posted and his tweets were being disseminated,” the appeals judges wrote.

In other words Shivers was aware people other than himself and Perrette saw or read the tweets.

“The tweets leading up to the ones posted on July 4th and July 8th, 2012, falsely indicated that defendant had a restraining order against Perrette, and that she was stalking him and making death threats against him,” the judges said. “The July 4th and 8th, 2012 tweets referenced the area of Cahuenga where Perrette lived. These tweets also referred to Perrette as defendant’s ‘stalker,’ and requested that readers ‘call LAPD!!!’ and ‘report her to LAPD immediately!’ if they saw her following him in the area.”

The judges concluded that it “can be inferred” Shivers “knew that persons who encountered Perrette after reading his tweets could have been motivated to report her to the police for what they believed was her stalking him, or to otherwise harass her.”

California’s Penal Code defines “harassment” as “conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person.”

The appeals judges ruled that “given the nature of Twitter and the provocative contents” of Shivers’s tweets, a person could “conclude defendant posted his tweets with the specific intent to incite or produce unwanted physical contact, injury, or harassment at the hands of a third party.”

Here is where the appeals courts further fine-tuned California criminal statute on electronic harassment.

Shivers’s lawyer argued there was no proof that his tweets “actually incited any third parties to commit unwanted physical contact, injury, or harassment of Perrette,” and that none “actually produced any unwanted physical contact, injury, or harassment by third parties.”

This is where the appeals court set a precedent.

The Penal Code states that a defendant is guilty of a misdemeanor if he, “with intent to place another person in reasonable fear for his or her safety, or the safety of the other person’s immediate family,” sends an “electronic message of a harassing nature about another person, which would be likely to incite or produce that unlawful action.”

The judges rejected Shivers’s legal contention that he didn’t violate the law because his posts never “actually incited” someone to harm his former wife.

The judges said in essence it didn’t matter, saying the Legislature’s intent in writing the law was clear because the statute specifically states that “a person is guilty if he or she electronically distributes a harassing message which would likely incite or produce” a third party’s action. They added, the law “reveals no requirement that actual incitement or actual production of the enumerated unlawful effects be caused by a person’s electronic distribution of a message.”

From this case the court’s own message is clear. Be careful about your e-mails and posts on Facebook and Twitter.
 
R.D. Byron-Smith's books, including his latest novel, American Jihadist, are available at Amazon.

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