author: KAFKER, J.

text:
    COMMONWEALTH v. Michelle CARTER.
    SJC-12502
    Supreme Judicial Court of Massachusetts, Bristol..
    Argued October 4, 2018. Decided February 6, 2019.
    Daniel N. Marx (William W. Fick, Nancy Gertner, Cambridge, Joseph P. Cataldo, & Cornelius J. Madera, III, Franklin, also present) for the defendant.
    Shoshana E. Stern, Assistant District Attorney (Maryclare Flynn, Assistant District Attorney, also present) for the Commonwealth.
    Eva G. Jellison, for youth advocacy division of the Committee for Public Counsel Services & another, amici curiae, submitted a brief.
    Brian Hauss, of New York, Matthew R. Segal, & Ruth A. Bourquin, for American Civil Liberties Union & another, amici curiae, submitted a brief.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   KAFKER, J.

At age seventeen, Michelle Carter was charged with involuntary manslaughter as a youthful offender for the suicide death of Conrad Roy, age eighteen. In Commonwealth v. Carter, 474 Mass. 624, 52 N.E.3d 1054 (2016) ( Carter I ), we affirmed the Juvenile Court judge's denial of the motion to dismiss the youthful offender indictment, "conclud[ing] that there was probable cause to show that the coercive quality of the defendant's verbal conduct overwhelmed whatever willpower the eighteen year old victim had to cope with his depression, and that but for the defendant's admonishments, pressure, and instructions, the victim would not have gotten back into [his] truck and poisoned himself to death." Id. at 635-636, 52 N.E.3d 1054. Thereafter, the defendant waived her right to a jury trial, and the case was tried to a judge in the Juvenile Court over several days. The defendant was convicted as charged and has appealed. We now consider whether the evidence at trial was sufficient to support the judge's finding of proof beyond a reasonable doubt that the defendant committed involuntary manslaughter as a youthful offender, and whether the other legal issues raised or revisited by the defense, including that the defendant's verbal conduct was protected by the First Amendment to the United States Constitution, require reversal of the conviction. We conclude that the evidence was sufficient to support the judge's finding of proof beyond a reasonable doubt that the defendant committed involuntary manslaughter as a youthful offender, and that the other legal issues presented by the defendant, including her First Amendment claim, lack merit. We therefore affirm.

Facts. In Carter I, 474 Mass. at 625-630 & nn.3-8, 52 N.E.3d 1054, we discussed at length the facts before the grand jury, including the numerous text messages exchanged between the defendant and the victim in the days leading up the victim's death on July 12, 2014. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the evidence supporting the defendant's conviction was not substantially different at trial and revealed the following facts.

On July 13, 2014, the victim's body was found in his truck, which was parked in a store parking lot in Fairhaven. He had committed suicide by inhaling carbon monoxide that was produced by a gasoline powered water pump located in the truck.

The defendant, who lived in Plainville, and the victim, who divided his time between his mother's home in Fairhaven and his father's home in Mattapoisett, first met in 2012, when they were both visiting relatives in Florida. Thereafter, they rarely saw each other in person, but they maintained a long-distance relationship by electronic text messaging and cellular telephone (cell phone) conversations. A frequent subject of their communications was the victim's fragile mental health, including his suicidal thoughts. Between October 2012 and July 2014, the victim attempted suicide several times by various means, including overdosing on over-the-counter medication, drowning, water poisoning, and suffocation. None of these attempts succeeded, as the victim abandoned each attempt or sought rescue.

At first, the defendant urged the victim to seek professional help for his mental illness. Indeed, in early June 2014, the defendant, who was planning to go to McLean Hospital for treatment of an eating disorder, asked the victim to join her, saying that the professionals there could help him with his depression and that they could mutually support each other. The victim rebuffed these efforts, and the tenor of their communications changed. As the victim continued researching suicide methods and sharing his findings with the defendant, the defendant helped plan how, where, and when he would do so, and downplayed his fears about how his suicide would affect his family. She also repeatedly chastised him for his indecision and delay, texting, for example, that he "better not be bull shiting me and saying you're gonna do this and then purposely get caught" and made him "promise" to kill himself. The trial judge found that the defendant's actions from June 30 to July 12 constituted wanton or reckless conduct in serious disregard of the victim's well-being, but that this behavior did not cause his death. This and other evidence, however, informed and instructed the judge about the nature of their relationship and the defendant's understanding of "the feelings that he has exchanged with her -- his ambiguities, his fears, his concerns," on the next night.

In the days leading to July 12, 2014, the victim continued planning his suicide, including by securing a water pump that he would use to generate carbon monoxide in his closed truck. On July 12, the victim drove his truck to a local store's parking lot and started the pump. While the pump was operating, filling the truck with carbon monoxide, the defendant and victim were in contact by cell phone. Cell phone records showed that one call of over forty minutes had been placed by the victim to the defendant, and a second call of similar length by the defendant to the victim, during the time when police believe the victim was in his truck committing suicide. There is no contemporaneous record of what the defendant and victim said to each other during those calls.

The defendant, however, sent a text to a friend at 8:02 P.M. , shortly after the second call: "he just called me and there was a loud noise like a motor and I heard moaning like someone was in pain, and he wouldn't answer when I said his name. I stayed on the phone for like 20 minutes and that's all I heard." And at 8:25 P.M. , she again texted that friend: "I think he just killed himself." She sent a similar text to another friend at 9:24 P.M. : "He called me, and I heard like muffled sounds and some type of motor running, and it was like that for 20 minutes, and he wouldn't answer. I think he killed himself." Weeks later, on September 15, 2014, she texted the first friend again, saying in part:

"I failed [the victim] I wasn't supposed to let that happen and now I'm realizing I failed him. [H]is death is my fault like honestly I could have stopped him I was on the phone with him and he got out of the car because it was working and he got scared and I fucking told him to get back in ... because I knew he would do it all over again the next day and I couldn't have him live the way he was living anymore I couldn't do it I wouldn't let him."

The judge found that the victim got out of the truck, seeking fresh air, in a way similar to how he had abandoned his prior suicide attempts. The judge also focused his verdict, as we predicted in Carter I, supra at 634, 52 N.E.3d 1054, on "those final moments, when the victim had gotten out of his truck, expressing doubts about killing himself." The judge found that when the defendant realized he had gotten out of the truck, she instructed him to get back in, knowing that it had become a toxic environment and knowing the victim's fears, doubts, and fragile mental state. The victim followed that instruction. Thereafter, the defendant, knowing the victim was inside the truck and that the water pump was operating -- the judge noted that she could hear the sound of the pump and the victim's coughing -- took no steps to save him. She did not call emergency personnel, contact the victim's family, or instruct him to get out of the truck. The victim remained in the truck and succumbed to the carbon monoxide. The judge concluded that the defendant's actions and her failure to act constituted, "each and all," wanton and reckless conduct that caused the victim's death.

Discussion. In Carter I, we considered whether there was probable cause for the grand jury to indict the defendant as a youthful offender for involuntary manslaughter, whereas here, we consider whether the evidence at trial was sufficient to support her conviction of that offense beyond a reasonable doubt, a much higher standard for the Commonwealth to meet. In Carter I, however, we also addressed and resolved several legal principles that govern this case. We rejected the defendant's claim that her words to the victim, without any physical act on her part and even without her physical presence at the scene, could not constitute wanton or reckless conduct sufficient to support a charge of manslaughter. Carter I, 474 Mass. at 632-633, 52 N.E.3d 1054. Rather, we determined that verbal conduct in appropriate circumstances could "overcome a person's willpower to live, and therefore ... be the cause of a suicide." Id. at 633, 52 N.E.3d 1054. We also ruled that "there was ample evidence to establish probable cause that the defendant's conduct was wanton or reckless under either a subjective or objective standard." Id. at 635, 52 N.E.3d 1054. See id. at 631, 52 N.E.3d 1054, quoting Commonwealth v. Pugh, 462 Mass. 482, 496-497, 969 N.E.2d 672 (2012) (wanton or reckless conduct may be "determined based either on the defendant's specific knowledge or on what a reasonable person should have known in the circumstances"). As we explained, "an ordinary person under the circumstances would have realized the gravity of the danger posed by telling the victim, who was mentally fragile, predisposed to suicidal inclinations, and in the process of killing himself, to get back in a truck filling with carbon monoxide." Carter I, supra at 635, 52 N.E.3d 1054. We further explained that "the defendant -- the victim's girl friend, with whom he was in constant and perpetual contact -- on a subjective basis knew that she had some control over his actions." Id. We also rejected the defendant's claims that the involuntary manslaughter statute, G. L. c. 265, § 13, was unconstitutionally vague as applied to her, Carter I, supra at 631 n.11, 52 N.E.3d 1054 ; that her reckless or wanton speech having a direct, causal link to the specific victim's suicide was protected under the First Amendment or art. 16 of the Massachusetts Declaration of Rights, Carter I, supra at 636 n.17, 52 N.E.3d 1054 ; and that her offense did not involve the infliction or threat of serious bodily harm, as required by G. L. c. 119, § 54, the youthful offender statute, Carter I, supra at 637 n.19, 52 N.E.3d 1054. For the most part, we decline to revisit these legal issues today, as we discern no error in our earlier analysis. With these principles in mind, we turn to the defendant's arguments on appeal, providing further explication, particularly on the First Amendment claim, where we deem necessary or appropriate.

a. Sufficiency of the evidence. The defendant argues that her conviction was unsupported by sufficient evidence. In particular, she argues that, to the extent her conviction was based on the victim's getting out of the truck and her ordering him back into it, it was improperly based on her after-the-fact statement, in her text message to a friend, that the victim "got out of the [truck] because it was working and he got scared and I fucking told him to get back in," a statement she asserts is uncorroborated. It is true that a conviction cannot be based solely on the defendant's extrajudicial confession. Commonwealth v. Forde, 392 Mass. 453, 458, 466 N.E.2d 510 (1984). The defendant's statement, however, was not uncorroborated. "The corroboration rule requires only that there be some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary." Id. Indeed, "in a homicide case, the corroborating evidence need only tend to show that the alleged victim is dead." Id.

Here, the defendant's statement was more than adequately corroborated not only by the victim's death but also by text messages exchanged with the victim encouraging him to commit suicide, and by the fact that the defendant and the victim were in voice contact while the suicide was in progress -- that is, despite the physical distance between them, the defendant was able to communicate with the victim, hear what was going on in the truck, and give him instructions. The trial judge also expressly "looked for independent corroboration of some of the statements that [the defendant] made, to make sure that there was no undue reliance on any one source of evidence." The judge emphasized that the "photos taken at the scene of the crime, where [the victim's] truck was located, clearly illustrate the location of the water pump immediately adjacent to where he would have been sitting in the truck, next to his upper torso and his head, thereby giving a good explanation to [the defendant's description] that the noise was loud within the truck. [The defendant] at that point, therefore, had reason to know that [the victim] had followed her instruction and had placed himself in the toxic environment of that truck." Clearly, the defendant was not "confessing" to an imaginary crime. In sum, the judge was entitled to credit the defendant's statement, and the corroborating details, that the victim had in fact gotten out of the truck and that the defendant ordered him back into the truck, ultimately causing his death.

The defendant also argues that the judge did not properly apply the legal principles set forth in Carter I. She points out that the judge's remarks on the record, explaining the guilty verdict, contain no express finding that her words had a "coercive quality" that caused the victim to follow through with his suicide. See Carter I, 474 Mass. at 634, 52 N.E.3d 1054. However, those remarks were, as the judge stated, not intended as a comprehensive statement of all the facts he found or of all his legal rulings. Moreover, "judges in jury-waived trials are presumed to know and correctly apply the law." Commonwealth v. Healy, 452 Mass. 510, 514, 895 N.E.2d 752 (2008), quoting Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75, 823 N.E.2d 404 (2005). Finally, and perhaps most importantly, rather than use our formulation, the judge expressly tracked the elements of manslaughter. He found: "She instructs [the victim] to get back into the truck, well knowing of all of the feelings that he has exchanged with her -- his ambiguities, his fears, his concerns." This, the judge found, constituted "wanton and reckless conduct by [the defendant], creating a situation where there is a high degree of likelihood that substantial harm would result to [the victim]." The judge then further found that this conduct caused the victim's death beyond a reasonable doubt. His finding of causation in this context, at that precise moment in time, includes the concept of coercion, in the sense of overpowering the victim's will.

This finding is supported by the temporal distinctions about causation drawn by the judge. Until the victim got out of the truck, the judge described the victim as the cause of his own suicidal actions and reactions. This period of "self-causation" and "self-help," which is completely consistent with his prior behavior, ended when he got out of the truck. As the judge explained:

"It is apparent to this Court in reviewing the evidence that [the victim] was struggling with his issues and seeing a way to address them and took significant actions of his own toward that end. His research was extensive. He spoke of it continually. He secured the generator. He secured the water pump. He researched how to fix the generator. He located his vehicle in an unnoticeable area and commenced his attempt by starting the pump.
"However, he breaks that chain of self-causation by exiting the vehicle. He takes himself out of the toxic environment that it has become. This is completely consistent with his earlier attempts at suicide. In October of 2012, when he attempted to drown himself, he literally sought air. When he exited the truck, he literally sought fresh air. And he told a parent of that attempt.
"Several weeks later, in October of 2012 again, he attempts, through the use of pills, to take his life but calls a friend and assistance is sought and treatment secured. That [the victim] may have tried and maybe succeeded another time, after July 12 or 13 of 2014, is of no consequence to this Court's deliberations." (Emphasis added.)

Once the victim left the truck, the judge found that the defendant overpowered the victim's will and thus caused his death. As the defendant herself explained, and we repeat due to its importance, "[The victim's] death is my fault like honestly I could have stopped him I was on the phone with him and he got out of the [truck] because it was working and he got scared and I fucking told him to get back in ... because I knew he would do it all over again the next day and I couldnt have him live the way he was living anymore I couldnt do it I wouldnt let him."

Although we recognize that legal causation in the context of suicide is an incredibly complex inquiry, we conclude that there was sufficient evidence to support a finding of proof of such causation beyond a reasonable doubt in the instant case. The judge could have properly found, based on this evidence, that the vulnerable, confused, mentally ill, eighteen year old victim had managed to save himself once again in the midst of his latest suicide attempt, removing himself from the truck as it filled with carbon monoxide. But then in this weakened state he was badgered back into the gas-infused truck by the defendant, his girlfriend and closest, if not only, confidant in this suicidal planning, the person who had been constantly pressuring him to complete their often discussed plan, fulfill his promise to her, and finally commit suicide. And then after she convinced him to get back into the carbon monoxide filled truck, she did absolutely nothing to help him: she did not call for help or tell him to get out of the truck as she listened to him choke and die.

In sum, the evidence at trial, in the light most favorable to the Commonwealth, was sufficient to establish the defendant's guilt beyond a reasonable doubt.

b. Due process claims. The defendant argues that she lacked fair notice that she could be convicted of involuntary manslaughter for her role in the victim's suicide and that her conviction therefore violated her right to due process. That is, she argues that the law of involuntary manslaughter is unconstitutionally vague as applied to her conduct. We rejected this argument in Carter I, 474 Mass. at 631 n.11, 52 N.E.3d 1054, and we remain of the view that the law is not vague. "A statute is unconstitutionally vague if [people] of common intelligence must necessarily guess at its meaning.... If a statute has been clarified by judicial explanation, however, it will withstand a challenge on grounds of unconstitutional vagueness." Id., quoting Commonwealth v. Crawford, 430 Mass. 683, 689, 722 N.E.2d 960 (2000). "Manslaughter is a common-law crime that has not been codified by statute in Massachusetts." Carter I, supra, quoting Commonwealth v. Rodriquez, 461 Mass. 100, 106, 958 N.E.2d 518 (2011). It has long been established in our common law that wanton or reckless conduct that causes a person's death constitutes involuntary manslaughter. See, e.g, Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211 (1967), and cases cited ("Involuntary manslaughter is an unlawful homicide, unintentionally caused ... by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct"). There is no doubt in this case that the defendant wantonly or recklessly instructed the victim to kill himself, and that her instructions caused his death.

Moreover, in the development of our common law, "conduct similar to that of the defendant has been deemed unlawful." Carter I, 474 Mass. at 631 n.11, 52 N.E.3d 1054, citing Persampieri v. Commonwealth, 343 Mass. 19, 22-23, 175 N.E.2d 387 (1961). In Persampieri, supra, the defendant was charged with murder, and pleaded guilty to manslaughter, after his wife threatened to commit suicide and he taunted her, saying she was "chicken -- and wouldn't do it," loaded a rifle and handed it to her, and, when she had difficulty firing the rifle, told her to take off her shoes and reach the trigger that way. She did so and killed herself. Id. at 23, 175 N.E.2d 387. We held that these facts would "have warranted a jury in returning a verdict of manslaughter." Id. Nor is Persampieri the only case in which we upheld a defendant's conviction based on his participation in a suicide. See Commonwealth v. Atencio, 345 Mass. 627, 627-628, 189 N.E.2d 223 (1963) (affirming conviction of involuntary manslaughter arising from game of "Russian roulette"). Indeed, the principle that a defendant might be charged and convicted of a homicide offense merely for "repeatedly and frequently advis[ing] and urg[ing] [a victim] to destroy himself," with no physical assistance, can be found in centuries-old Massachusetts common law. Commonwealth v. Bowen, 13 Mass. 356, 356 (1816). In the Bowen case, the defendant was in the adjoining jail cell of the victim, whom the defendant harangued into hanging himself. Id. It is true, as the defendant points out, that the defendant in Bowen, who was charged with murder for such alleged conduct, was in fact acquitted by the jury. Id. at 360-361. But the legal principle that procuring a suicide "by advice or otherwise" may constitute a homicide is clear from the instructions reported in Bowen. Id. at 359. In sum, our common law provides sufficient notice that a person might be charged with involuntary manslaughter for reckless or wanton conduct, including verbal conduct, causing a victim to commit suicide. The law is not unconstitutionally vague as applied to the defendant's conduct.

c. Free speech claims. The defendant argues that her conviction of involuntary manslaughter violated her right to free speech under the First Amendment and art. 16. We disagree and thus reaffirm our conclusion in Carter I that no constitutional violation results from convicting a defendant of involuntary manslaughter for reckless and wanton, pressuring text messages and phone calls, preying upon well-known weaknesses, fears, anxieties and promises, that finally overcame the willpower to live of a mentally ill, vulnerable, young person, thereby coercing him to commit suicide. Carter I, 474 Mass. at 636 n.17, 52 N.E.3d 1054. We more fully explain our reasoning here.

The crime of involuntary manslaughter proscribes reckless or wanton conduct causing the death of another. The statute makes no reference to restricting or regulating speech, let alone speech of a particular content or viewpoint: the crime is "directed at a course of conduct, rather than speech, and the conduct it proscribes is not necessarily associated with speech" (quotation and citation omitted). Commonwealth v. Johnson, 470 Mass. 300, 308, 21 N.E.3d 937 (2014). The defendant cannot escape liability just because she happened to use "words to carry out [her] illegal [act]." Id. at 309, 21 N.E.3d 937, quoting United States v. Barnett, 667 F.2d 835, 842 (9th Cir. 1982). See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 93 L.Ed. 834 (1949) (upholding conviction for speech used as "essential and inseparable part" of crime).

Although numerous crimes can be committed verbally, they are "intuitively and correctly" understood not to raise First Amendment concerns. Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 279 (1981). See K. Greenawalt, Speech, Crime, and the Uses of Language 6-7 (1989) (listing twenty-one examples of crimes committed using speech). The same is true under art. 16. See, e.g., Commonwealth v. Disler, 451 Mass. 216, 222, 224-226, 884 N.E.2d 500 (2008) (defendant could not assert art. 16 defense to conviction of child enticement even though crime could be committed by "words [spoken or written]

and nothing more"); Commonwealth v. Sholley, 432 Mass. 721, 727, 739 N.E.2d 236 (2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1621, 149 L.Ed.2d 484 (2001) ("no violation" of art. 16 where defendant was convicted of making threat under G. L. c. 275, § 2 ). "It has never been deemed an abridgment of freedom of speech ... to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed" (citation omitted). Johnson, 470 Mass. at 309, 21 N.E.3d 937. Indeed, the United States Supreme Court has held that "speech or writing used as an integral part of conduct in violation of a valid criminal statute" is not protected by the First Amendment. Giboney, 336 U.S. at 498, 69 S.Ct. 684. Accord United States v. Stevens, 559 U.S. 460, 468-469, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). See Commonwealth v. Chou, 433 Mass. 229, 236, 741 N.E.2d 17 (2001) ("true threats" lack First Amendment protection because "purpose is to cause injury rather than to add to, or to comment on, the public discourse").

The defendant contends nonetheless that prosecuting and convicting her of involuntary manslaughter for encouraging suicide effected a content-based restriction on speech that does not withstand strict scrutiny. In particular, she acknowledges the Commonwealth's compelling interest in preserving human life but argues that we failed to determine in Carter I, 474 Mass. at 636 n.17, 52 N.E.3d 1054, that the restriction on speech was narrowly tailored to further that interest. We disagree. The only speech made punishable in Carter I was "speech integral to [a course of] criminal conduct," Stevens, 559 U.S. at 468, 130 S.Ct. 1577, citing Giboney, 336 U.S. at 498, 69 S.Ct. 684, that is, a "systematic campaign of coercion on which the virtually present defendant embarked -- captured and preserved through her text messages -- that targeted the equivocating young victim's insecurities and acted to subvert his willpower in favor of her own," Carter I, supra at 636, 52 N.E.3d 1054. Other involuntary manslaughter prosecutions and convictions have similarly targeted a course of criminal conduct undertaken through manipulative wanton or reckless speech directed at overpowering the will to live of vulnerable victims. See Persampieri, 343 Mass. at 22-23, 175 N.E.2d 387 ; Bowen, 13 Mass. at 359-360.

As the Supreme Court has explained, "From 1791 to the present ... the First Amendment has permitted restrictions upon the content of speech in a few limited areas ... which have never been thought to raise any constitutional problems," including "speech integral to criminal conduct" (quotations and citations omitted). Stevens, 559 U.S. at 468-469, 130 S.Ct. 1577. We do not apply the narrow tailoring required by strict scrutiny in these contexts but rather determine whether the speech at issue falls within these "well-defined and narrowly limited classes of speech" (quotation and citation omitted). Brown v. Entertainment Merchants Ass'n, 564 U.S. 786, 804, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011). Thus, there is nothing in the prosecution or conviction of the defendant in the instant case, or the prior involuntary manslaughter cases in the Commonwealth involving verbal criminal conduct, to suggest that the First Amendment has been violated in any way. The only verbal conduct punished as involuntary manslaughter has been the wanton or reckless pressuring of a vulnerable person to commit suicide, overpowering that person's will to live and resulting in that person's death. We are therefore not punishing words alone, as the defendant claims, but reckless or wanton words causing death. The speech at issue is thus integral to a course of criminal conduct and thus does not raise any constitutional problem.

Regardless, even if we were to apply strict scrutiny to the verbal conduct at issue because it might implicate other constitutionally protected speech regarding suicide or the end of life, we would conclude that the restriction on speech here has been narrowly circumscribed to serve a compelling purpose. As we explained in Carter I, 474 Mass. at 636, 52 N.E.3d 1054, and reemphasize today, this case does not involve the prosecution of end-of-life discussions between a doctor, family member, or friend and a mature, terminally ill adult confronting the difficult personal choices that must be made when faced with the certain physical and mental suffering brought upon by impending death. Nor does it involve prosecutions of general discussions about euthanasia or suicide targeting the ideas themselves. See Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"). Nothing in Carter I, our decision today, or our earlier involuntary manslaughter cases involving verbal conduct suggests that involuntary manslaughter prosecutions could be brought in these very different contexts without raising important First Amendment concerns. See Commonwealth v. Bigelow, 475 Mass. 554, 562, 59 N.E.3d 1105 (2016) ("In considering the First Amendment's protective reach, critical to the examination is the context and content of the speech at issue" [quotation omitted] ). We emphasize again, however, that the verbal conduct targeted here and in our past involuntary manslaughter cases is different in kind and not degree, and raises no such concerns. Only the wanton or reckless pressuring of a person to commit suicide that overpowers that person's will to live has been proscribed. This restriction is necessary to further the Commonwealth's compelling interest in preserving life. Thus, such a prohibition would survive even strict scrutiny.

d. "Infliction" of serious bodily harm. The defendant argues that her conviction as a youthful offender cannot survive under G. L. c. 119, § 54, because she did not inflict serious bodily harm on the victim. She argues that the term "infliction" in § 54 requires direct, physical causation of harm, not mere proximate causation, and that from her remote location, she could not have inflicted serious bodily harm on the victim within the meaning of the statute. We reject this unduly narrow interpretation of the statutory language. The youthful offender statute authorizes an indictment against a juvenile who is "alleged to have committed an offense ... involv[ing] the infliction or threat of serious bodily harm" (emphasis added). G. L. c. 119, § 54. By its terms, the statute requires that the offense involve the infliction of serious bodily harm, not that the defendant herself be the one who directly inflicted it. If we were to interpret the statute to include such a requirement, it is difficult to see how a juvenile could be indicted as a youthful offender for, say, hiring a third party to carry out an attack on a victim. It is enough, as we said in Carter I, that "involuntary manslaughter in these circumstances inherently involves the infliction of serious bodily harm." Carter I, 474 Mass. at 637 n.19, 52 N.E.3d 1054.

e. "Reasonable juvenile." The defendant next argues, as she did in Carter I, that her actions should have been evaluated under a "reasonable juvenile" standard rather than a "reasonable person" standard. As we said before,

"Whether conduct is wanton or reckless is 'determined based either on the defendant's specific knowledge or on what a reasonable person should have known in the circumstances.... If based on the objective measure of recklessness, the defendant's actions constitute wanton or reckless conduct ... if an ordinary normal [person] under the same circumstances would have realized the gravity of the danger. ... If based on the subjective measure, i.e., the defendant's own knowledge, grave danger to others must have been apparent and the defendant must have chosen to run the risk rather than alter [his or her] conduct so as to avoid the act or omission which caused the harm' (quotations and citation omitted)."

Carter I, 474 Mass. at 631, 52 N.E.3d 1054, quoting Pugh, 462 Mass. at 496-497, 969 N.E.2d 672. The defendant argues essentially that, when considering a juvenile's actions under the objective measure of recklessness, we should consider whether an ordinary juvenile under the same circumstances would have realized the gravity of the danger. It is clear from the judge's findings, however, that he found the defendant's actions wanton or reckless under the subjective measure, that is, based on her own knowledge of the danger to the victim and on her choice to run the risk that he would comply with her instruction to get back into the truck. That finding is amply supported by the trial record. Because the defendant's conduct was wanton or reckless when evaluated under the subjective standard, there is no need to decide whether a different objective standard should apply to juveniles.

Moreover, it is clear from the judge's sentencing memorandum that he did in fact consider the defendant's age and maturity when evaluating her actions and that he was familiar with the relevant case law and "mindful" of the general principles regarding juvenile brain development. He noted that on the day of the victim's death, she was seventeen years and eleven months of age and at an age-appropriate level of maturity. Her ongoing contact with the victim in the days leading to his suicide, texting with him about suicide methods and his plans and demanding that he carry out his plan rather than continue to delay, as well as the lengthy cell phone conversations on the night itself, showed that her actions were not spontaneous or impulsive. And, as the judge specifically found, "[h]er age or level of maturity does not explain away her knowledge of the effects of her telling [the victim] to enter and remain in that toxic environment, leading to his death." Where the judge found that the defendant ordered the victim back into the truck knowing the danger of doing so, he properly found that her actions were wanton or reckless, giving sufficient consideration to her age and maturity.

f. Expert witness. Finally, the defendant argues that the judge wrongly denied her motion in limine to admit expert testimony by a forensic psychologist. The witness would have testified as to general principles and characteristics of the undeveloped adolescent brain, but not as to the defendant specifically, as he had never examined her. It is true, as the defendant argues, that we have upheld the admission of similar testimony in the past. See Commonwealth v. Okoro, 471 Mass. 51, 66, 26 N.E.3d 1092 (2015). But the fact that one judge properly exercised his discretion to admit expert testimony in one case does not mean that another judge abused his discretion by excluding similar testimony in a different case. We have reviewed the voir dire testimony of the defendant's expert witness and conclude that the judge did not abuse his discretion by determining that the proffered testimony would not have aided the finder of fact in the circumstances of this case. Moreover, after the judge ruled on the motion in limine, the defendant waived her right to a jury trial and proceeded before the same judge. Where an experienced judge of the Juvenile Court sat as the finder of fact in the defendant's case, we cannot perceive any prejudice to the defendant in his decision to preclude this expert testimony in the circumstances of this case.

Conclusion. The evidence against the defendant proved that, by her wanton or reckless conduct, she caused the victim's death by suicide. Her conviction of involuntary manslaughter as a youthful offender is not legally or constitutionally infirm. The judgment is therefore affirmed.

So ordered.

      We acknowledge the amicus briefs submitted by the Youth Advocacy Division of the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers, and by the American Civil Liberties Union and the American Civil Liberties Union of Massachusetts.

      Voluminous text messages between the defendant and victim -- apparently their entire text history -- were admitted in evidence.

      For example, on July 7, 2014, between 10:57 p.m. and 11:08 p.m. , they exchanged the following text messages:
      Defendant : "Well there's more ways to make CO. Google ways to make it...."
      Victim : "Omg"
      Defendant : "What"
      Victim : "portable generator that's it"
      Defendant : "That makes CO?"
      Victim : "yeah! It's an internal combustion engine."
      Defendant : "Do you have one of those?"
      Victim : "There's one at work."
      Similarly, on July 11, 2014, at 5:13 p.m. , the defendant sent the victim the following text message: "... Well in my opinion, I think u should do the generator because I don't know much about the pump and with a generator u can't fail"
      See Commonwealth v. Carter, 474 Mass. 624, 626 n.4, 52 N.E.3d 1054 (2016) (Carter I ).

      During the evening of July 11 and morning of July 12, 2014, the victim and the defendant exchanged the following text messages:
      Victim : "I have a bad feeling tht this is going to create a lot of depression between my parents/sisters"
      ...
      Defendant : "I think your parents know you're in a really bad place. Im not saying they want you to do it, but I honestly feel like they can except it. They know there's nothing they can do, they've tried helping, everyone's tried. But there's a point that comes where there isn't anything anyone can do to save you, not even yourself, and you've hit that point and I think your parents know you've hit that point. You said you're mom saw a suicide thing on your computer and she didn't say anything. I think she knows it's on your mind, and she's prepared for it"
      Defendant : "Everyone will be sad for a while, but they will get over it and move on. They won't be in depression I won't let that happen. They know how sad you are and they know that you're doing this to be happy, and I think they will understand and accept it. They'll always carry u in their hearts"
      ...
      Victim : "i don't want anyone hurt in the process though"
      Victim : "I meant when they open the door, all the carbon monoxide is gonna come out they can't see it or smell it. whoever opens the door"
      Defendant : "They will see the generator and know that you died of CO...."
      ...
      Victim : "Idk I'm freaking out again"
      ...
      Defendant : "I thought you wanted to do this. The time is right and you're ready, you just need to do it! You can't keep living this way. You just need to do it like you did last time and not think about it and just do it babe. You can't keep doing this every day"
      Victim : "I do want to. but like I'm freaking for my family. I guess"
      Victim : "idkkk"
      Defendant : "Conrad. I told you I'll take care of them. Everyone will take care of them to make sure they won't be alone and people will help them get thru it. We talked about this, they will be okay and accept it. People who commit suicide don't think this much and they just do it"
      See Carter I, 474 Mass. at 627 n.5, 52 N.E.3d 1054.

      On July 12, 2014, between 4:25 a.m. and 4:34 a.m. , they exchanged the following text messages:
      Defendant : "So I guess you aren't gonna do it then, all that for nothing"
      Defendant : "I'm just confused like you were so ready and determined"
      Victim : "I am gonna eventually"
      Victim : "I really don't know what I'm waiting for .. but I have everything lined up"
      Defendant : "No, you're not, Conrad. Last night was it. You keep pushing it off and you say you'll do it but u never do. Its always gonna be that way if u don't take action"
      Defendant : "You're just making it harder on yourself by pushing it off, you just have to do it"
      Defendant : "Do u wanna do it now?"
      Victim : "Is it too late?"
      Victim : "Idkk it's already light outside"
      Victim : "I'm gonna go back to sleep, love you I'll text you tomorrow"
      Defendant : "No? Its probably the best time now because everyone's sleeping. Just go somewhere in your truck. And no one's really out right now because it's an awkward time"
      Defendant : "If u don't do it now you're never gonna do it"
      Defendant : "And u can say you'll do it tomorrow but you probably won't"
      See Carter I, 474 Mass. at 626 n.4, 52 N.E.3d 1054.
      At various times between July 4 and July 12, 2014, the defendant and the victim exchanged several similar text messages:
      Defendant : "You're gonna have to prove me wrong because I just don't think you really want this. You just keeps pushing it off to another night and say you'll do it but you never do"
      ...
      Defendant : "SEE THAT'S WHAT I MEAN. YOU KEEP PUSHING IT OFF! You just said you were gonna do it tonight and now you're saying eventually...."
      ...
      Defendant : "But I bet you're gonna be like 'oh, it didn't work because I didn't tape the tube right or something like that' ... I bet you're gonna say an excuse like that"
      ...
      Defendant : "Do you have the generator?"
      Victim : "not yet lol"
      Defendant : "WELL WHEN ARE YOU GETTING IT"
      ...
      Defendant : "You better not be bull shiting me and saying you're gonna do this and then purposely get caught"
      ...
      Defendant : "You just need to do it Conrad or I'm gonna get you help"
      Defendant : "You can't keep doing this everyday"
      Victim : "Okay I'm gonna do it today"
      Defendant : "Do you promise"
      Victim : "I promise babe"
      Victim : "I have to now"
      Defendant : "Like right now?"
      Victim : "where do I go? :("
      Defendant : "And u can't break a promise. And just go in a quiet parking lot or something" (emphasis added).
      See Carter I, 474 Mass. at 628 n.6, 52 N.E.3d 1054.

      During that same time period, the defendant carried out what the prosecutor called a "dry run." On July 10 -- two days before the victim's suicide -- the defendant sent text messages to two friends, stating that the victim was missing, that she had not heard from him, and that his family was looking for him. She sent similar messages to those friends the following day, stating that the victim was still missing and that she was losing hope. In fact, at that time, the defendant was in communication with the victim and knew he was not missing. She also asked a friend in a text message, "Is there any way a portable generator can kill you somehow? Because he said he was getting that and some other tools at the store, and he said he needed to replace the generator at work and fix stuff ... but he didn't go to work today so I don't know why he would have got that stuff." In fact, the defendant and the victim had previously discussed the use of a generator to produce carbon monoxide. As the Commonwealth argued at trial, this dry run demonstrated the defendant's motive to gain her friends' attention and, once she had their attention, not to lose it by being exposed as a liar when the victim failed to commit suicide. Arguably, these desires caused her to disregard the clear danger to the victim.

      The defendant eventually texted the victim's sister, but not until 10:18 p.m. , more than two hours after the second lengthy phone call with the victim. In that text, the defendant asked, "Do you know where your brother is?", and did not explain what she knew about the victim.

      The defendant suggests that she was indicted for involuntary manslaughter based on wanton or reckless conduct, but wrongly convicted based on a wanton or reckless failure to act. In our view, the indictment charging the defendant with manslaughter "by wanton and reckless conduct" subsumed both theories. See Commonwealth v. Pugh, 462 Mass. 482, 497, 969 N.E.2d 672 (2012), quoting Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902 (1944) ("the requirement of 'wanton or reckless conduct' may be satisfied by either the commission of an intentional act or an intentional 'omission where there is a duty to act' "). Moreover, it is clear from the judge's findings that the conviction was not based solely on a failure to act but also on the defendant's affirmative conduct, namely, directing the victim to get back in the truck.

      There is no question in this case that the Commonwealth proved beyond a reasonable doubt that the defendant engaged in wanton or reckless conduct, that is, "intentional conduct ... involv[ing] a high degree of likelihood that substantial harm will result to another." Pugh, 462 Mass. at 496, 969 N.E.2d 672, quoting Welansky, 316 Mass. at 399, 55 N.E.2d 902. Both the objective and subjective standards discussed above are satisfied. Given the victim's mental illness, his previous suicide attempts, and his suicide plans, there can be no doubt that an ordinary person such as the defendant, his girlfriend who constantly communicated with him, would understand the grave danger to his life, and yet she continued to pressure him to follow through with his plan. The difficult issue before us is not whether the defendant's conduct was wanton or reckless, as this is not a close question, but whether her conduct was the cause of the victim's death.

      The defendant characterizes her conduct as merely "encouraging" the victim's suicide. As we have discussed at length, however, it is clear from the judge's findings that she did not merely encourage the victim, but coerced him to get back into the truck, causing his death.

      The victim committed suicide by hanging hours before he was to be hanged publicly for his own killing of his father. Commonwealth v. Bowen, 13 Mass. 356, 356 (1816).

      The defendant points out that, unlike Massachusetts, several other States, rather than relying on the common law, have enacted statutes prohibiting aiding or assisting suicide and specifying what conduct runs afoul of such statutes. However, the fact that some State Legislatures have chosen to address this problem by statute in no way prevents us from concluding that Massachusetts common law provided the defendant with fair notice that her conduct was prohibited.

      As in Commonwealth v. Walters, 472 Mass. 680, 690 n.26, 37 N.E.3d 980 (2015), S.C., 479 Mass. 277, 94 N.E.3d 764 (2018), we apply the same analysis under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights.

      Crimes committed using text messages or other electronic communications are treated no differently. See Walters, 472 Mass. at 696, 37 N.E.3d 980 (threat conveyed by "telecommunication device or electronic communication device" would not receive First Amendment or art. 16 protection [citation omitted] ); Commonwealth v. Johnson, 470 Mass. 300, 312, 21 N.E.3d 937 (2014) (there is no First Amendment protection for electronic communications and Internet postings used to commit harassment).

      In Carter I, 474 Mass. at 636, 52 N.E.3d 1054, we stated: "It is important to articulate what this case is not about. It is not about a person seeking to ameliorate the anguish of someone coping with a terminal illness and questioning the value of life. Nor is it about a person offering support, comfort, and even assistance to a mature adult who, confronted with such circumstances, has decided to end his or her life. These situations are easily distinguishable from the present case, in which the grand jury heard evidence suggesting a systematic campaign of coercion on which the virtually present defendant embarked -- captured and preserved through her text messages -- that targeted the equivocating young victim's insecurities and acted to subvert his willpower in favor of her own."

      Unlike in Carter I, 474 Mass. at 636 n.18, 52 N.E.3d 1054, the defendant raised this claim at trial by moving for a required finding of not guilty on this ground (among others). The judge denied the motion without stating his reasons, making it unclear to us whether he rejected a "reasonable juvenile" standard as a matter of law, determined that the evidence would be sufficient to establish the defendant's guilt under a "reasonable juvenile" standard, or determined that, regardless of whether an objective "reasonable juvenile" standard was proper, the evidence was sufficient to establish her guilt under a subjective standard. The defendant did not press for a "reasonable juvenile" standard in her closing argument. The Commonwealth does not claim that the issue was not preserved.


source: Caselaw Access Project

author: RUBIN, J.

license: Public Domain

text:
    Ana ALMEIDA, Personal Representative, v. Giovanni PINTO & Others.
    No. 17-P-1403
    Appeals Court of Massachusetts, Bristol..
    Argued June 4, 2018. Decided December 6, 2018.
    Scott W. Lang, New Bedford (Jennifer L. Davis also present) for the plaintiff.
    Martin S. Cosgrove, Quincy, for Victor Pinto.
    Stephen M.A. Woodworth, South Easton, for Chelsea Pinhancos Pinto & another.
    Present: Rubin, Wendlandt, & Englander, JJ.

      Of the estate of Ildemaro Vieira.

      Chelsea Pinhancos Pinto and Victor Pinto. Although Victor Pinto, in his deposition, clarified that his first name is Vitor, we refer to him as "Victor" in accordance with court documents and references to himself in his appellate brief.

   RUBIN, J.

Ildemaro Vieira tragically fell to his death while repairing the siding of a three-story house. The plaintiff, Ana Almeida, as personal representative of his estate, brought this wrongful death and negligence action against the homeowners, Giovanni Pinto and Chelsea Pinhancos Pinto, and Victor Pinto, who was involved in Ildemaro's hiring. A judge of the Superior Court granted summary judgment in favor of the defendants. The plaintiff now appeals.

Background. Summary judgment is proper only if "all material facts have been established and the nonmoving party is entitled to judgment as a matter of law," where all the evidence is "view[ed] ... in the light most favorable to the nonmoving party," here, Almeida. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). In this light, the record reveals the following.

Giovanni and Chelsea purchased a three-unit, three-story house in New Bedford in 2010, which, according to the plaintiff's expert, has a volume of over 35,000 cubic feet, something we must assume is true given the procedural posture of this case. The couple lived in the second-story unit and rented out the other two.

In the fall of 2012, winds from Hurricane Sandy blew off some of the vinyl siding near the second- and third-story windows. Although the summary judgment record contains conflicting evidence on how much siding needed repair, the plaintiff's expert calculated and opined that it was over one hundred square feet, and, since we must take the evidence in the light most favorable to the nonmoving party, we must accept that as well for purposes of decision.

Victor, Giovanni's father, told Giovanni that he should repair the siding because "winter is coming." Giovanni, a commercial fisherman, did not believe he could do the repairs himself, and concluded that "there was a need for a professional person." He asked Victor if he knew anyone who could fix the house. Victor did not, so he asked his landscaper, John Vieira, if he "knew anyone that did vinyl." Initially John responded that he did not know of any such person, but he called Victor back a day or two later and said, "[M]y brother ... does it." John's brother was the decedent, Ildemaro Vieira. According to Almeida, although Ildemaro had occasionally done siding projects, he had never done one higher than the first story of a house on his own and did not have a contractor's or home improvement license. John testified that Ildemaro "did lots of work like [this]." Nobody applied for a building permit.

Victor met with Ildemaro on December 8 to show him the house. Ildemaro offered to do the job for $200, which Victor understood to include the cost of the equipment, as he was never asked to provide any equipment or advance money for expenses. Victor conveyed Ildemaro's offer to Giovanni and asked Giovanni if he wanted Ildemaro to do the work. Giovanni said, "[Y]es." Giovanni testified that he did not know who would be doing the siding, but that he agreed upon a price of $200. Giovanni also testified that he did not know when the work would be performed; Victor testified that he knew only that it would be performed on weekends.

On December 9, Ildemaro met John at a coffee shop and asked to borrow John's ladders for the job. John agreed, and the two of them brought the ladders to the house. John and Ildemaro put one of the ladders against the wall. Ildemaro climbed up, took some measurements, climbed down to cut some of the siding pieces, and climbed up again with two or three pieces of vinyl. He was wearing a tool belt with a screwdriver in it, but no helmet, harness, or other safety equipment. As he was "snapping vinyls together" with the screwdriver, he stretched to his left to finish a piece, and the ladder shifted to the right, causing him to fall. He hit his head first on an iron fence, then on the cement. Two women were walking by, and John yelled at them to call 911, which they did. An ambulance brought Ildemaro to Providence Hospital, where he remained on life support for five days without regaining consciousness.

Discussion. Our review of a grant of summary judgment is de novo. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637, 977 N.E.2d 552 (2012).

"When reviewing a grant of summary judgment we consider the pleadings, depositions, answers to interrogatories, and responses to requests for admission ... together with the affidavits, and ask if there is any genuine issue as to any material fact.... We view the evidence in the light most favorable to the nonmoving party.... If all material facts have been established and the moving party is entitled to judgment as a matter of law, then the 'judgment sought shall be rendered forthwith.' "

Id., quoting Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). Otherwise, the judgment must be reversed.

The defendants argue that summary judgment was appropriate because the defendants did not owe Ildemaro a duty, and if they did, they did not breach any such duty, or any such breach did not cause Ildemaro's death. See Jupin v. Kask, 447 Mass. 141, 146, 849 N.E.2d 829 (2006) ("To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage").

1. Duty and breach. "[T]he existence [or nonexistence] of a duty is a question of law, and is thus an appropriate subject of summary judgment." Jupin, 447 Mass. at 146, 849 N.E.2d 829. Subject to certain exceptions not applicable here, "[a]n owner or possessor of land owes a common-law duty of reasonable care to all persons lawfully on the premises." Dos Santos v. Coleta, 465 Mass. 148, 154, 987 N.E.2d 1187 (2013). Here, although the judge mistakenly concluded otherwise, Giovanni and Chelsea, like other property owners, owed Ildemaro a duty of reasonable care. We will assume, without deciding, that, as their agent, Victor also owed him this duty.

According to the plaintiff, the duty of care was breached in several ways.

"The concept of 'duty' ... 'is not sacrosanct in itself, but is only an expression of the sum total of ... considerations of policy which lead the law to say that the plaintiff is entitled to protection.... No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.' "

Luoni v. Berube, 431 Mass. 729, 735, 729 N.E.2d 1108 (2000), quoting W.L. Prosser & W.P. Keeton, Torts § 53, at 358-359 (5th ed. 1984).

a. Failure to provide safety equipment. The plaintiff argues first that it was the duty of the homeowners to provide safety equipment or the money to purchase it. She provides no support for the contention, however, that homeowners like those in this case may not hire someone who will provide his or her own equipment to undertake home repairs, or that they had a duty in this instance to inquire further whether Ildemaro had adequate equipment, where he offered to undertake specialized work that he claimed to have done before. There is no evidence from which a fact finder could infer that in offering to do the job the decedent gave any indication to the homeowners that he did not already possess or have access to the necessary equipment, that he expected them to provide it, or that he needed help to buy or otherwise obtain it. It is undisputed that John told Victor that Ildemaro "does [vinyl]," which -- in the absence of any indication to the contrary -- implies that he either owned or would obtain the necessary equipment.

b. The low price as breach. The plaintiff argues next that hiring someone to do this job for $200 was itself a breach of the duty of care, because one could not pay for the equipment required to do the job safely at such a rate.

Even assuming there could be a circumstance in which someone might offer to do a job for such a low price that a purchaser should know that it could not be done safely, this is not such a case. The consumer purchasers of the decedent's services here had no specialized knowledge about the cost of siding repair. Homeowners are routinely solicited for the performance of repair and maintenance services. They routinely seek the lowest price, and service providers routinely compete on price. There is no evidence in the record that a person who already owned the equipment necessary to perform the job safely could not have done the job for $200, or that a reasonable homeowner would have known that. Nor, assuming it would alter the analysis, is there any evidence in the record that the price charged for the job was below some market rate that the homeowners should have known, or that the homeowners or their agent knew anything about the circumstances of Ildemaro -- who asked for only $200 -- that might have suggested that he was doing something dangerous out of financial desperation. In short, the homeowners cannot be faulted for accepting the offer to do the repair for the low price sought by the decedent. c. Failure to apply for building permit. The plaintiff next argues that the duty of reasonable care included the defendants' duty to apply for a building permit prior to authorizing the work on their house. See 780 Code Mass. Regs. § 105.1 (2010). A permit is not required for "ordinary repairs," 780 Code Mass. Regs. § 105.2(4), which are defined as "maintenance which does not affect the structure, egress, fire protection systems, fire ratings, energy conservation provisions, plumbing, sanitary, gas, electrical or other utilities." 780 Code Mass. Regs. § 202. However, there was evidence in the record that the city of New Bedford requires permits for repairs like this one if they involve over one hundred square feet of siding. Although we express no view on the correctness of that evidence, viewed in the light most favorable to the plaintiff, the record supports an inference that a building permit was required for the work at issue.

Although regulations do not in and of themselves impose a duty, they are evidence of the standard of care with respect to consequences they were intended to prevent. See Rice v. James Hanrahan & Sons, 20 Mass. App. Ct. 701, 708, 482 N.E.2d 833 (1985) ("in negligence actions evidence of a safety regulation ... [can be introduced to] establish the prescribed standard of care"); Ford v. Boston Hous. Auth., 55 Mass. App. Ct. 623, 625, 773 N.E.2d 471 (2002) ("A violation of [a regulation] is evidence of negligence as to the consequences the ... regulation[ ] [was] intended to prevent"). Among other things, the State Building Code authorizes the building inspector to stop work that is being done in a dangerous manner. See 780 Code Mass. Regs. § 115.1. The regulations in the State Building Code thus evince an intent to protect workers from unsafe working conditions. We therefore will assume without deciding, as the defendants appeared to concede at argument, that, assuming a building permit was required for this work, and assuming it was the homeowners' duty to ensure that one was obtained, the homeowners' duty of care included a duty to obtain such a permit, and that, as they did not even apply for one, there was a breach of that duty.

d. Occupational Safety and Health Administration (OSHA) regulations. Finally, the plaintiff also argues that the defendants violated various OSHA regulations and that this is evidence of their negligence. But the OSHA regulations do not apply to homeowners who hire an independent contractor. See Lynch v. Reed, 284 Mont. 321, 330, 944 P.2d 218 (1997) ("OSHA does not apply to an owner where the worker on the owner's property is an independent contractor and not an employee of the owner"). See also Ellis v. Chase Communications, Inc., 63 F.3d 473, 478 (6th Cir. 1995) ; Cochran v. International Harvester Co., 408 F.Supp. 598, 602 (W.D. Ky. 1975). The judge found that the decedent was an independent contractor, and the plaintiff does not dispute this finding on appeal. Because this means the defendants were not subject to the OSHA regulations, we do not think the regulations support a conclusion that failure to abide by them amounted to breach of the duty of care.

2. Causation. Although, as described, we will assume the plaintiff's evidence with respect to the failure to obtain a building permit was sufficient at least to raise a genuine issue of material fact with respect to duty and breach, her case nonetheless ultimately founders on the shoals of causation. Summary judgment is proper unless from the evidence in the record and all reasonable inferences that can be drawn therefrom in the nonmoving party's favor, a reasonable juror could find the defendants' breach -- in this case, we are assuming, the failure to apply for a building permit -- caused the decedent's injury and death.

According to the plaintiff's expert, it was unsafe to use a ladder to perform the siding repairs, which he opined were at "excessive heights"; only a scaffold or aerial lift would have been appropriate, and we take that as true. The plaintiff argues that, had a permit application been submitted, the decedent never would have undertaken the dangerous work involved in this case on a ladder. She asserts that, "[h]ad a permit application been submitted for this job, a number of safeguards in the process would have been present to prevent the dangerous work from being undertaken." We examine in turn each mechanism by which the plaintiff claims the work would have been stopped:

a. According to the plaintiff's expert, the application would have required the signature of a "registered design professional" (RDP), meaning an architect or engineer, see G. L. c. 143, § 54A ;

780 Code Mass. Regs. § 107.1.1. The plaintiff argues, "First, the registered design professional could have rejected the plans for the project as unsafe." But there is no evidence in the record that, for a project like this, the RDP reviews plans with respect to the manner in which the work is to be performed. On its face, the relevant regulation states that the "site plan" that requires an RDP's signature need only show "the size and location of new construction and existing structures on the site, distances from lot lines, the established street grades and the proposed finished grades and, as applicable, flood hazard zones, high hazard zones, floodways, and base flood elevations" (emphasis omitted). 780 Code Mass. Regs. § 107.2.5. See 780 Code Mass. Regs. §§ 105.3(4), 107.1.1. The assertion that an RDP would have rejected the application on the basis of the manner of the work -- indeed, the question whether an RDP would even review the manner in which the work was to be performed -- is, on this record, speculative.

b. The plaintiff next argues, "Second, the decedent would have had to have been identified in Section IV of the permit application as the person completing the work. He would have had to have left the builder's license number blank in Section IV because he did not possess one. See New Bedford, Mass., Code of Ordinances, § 6-29 (2017). With his lack of training, experience, and licensing, it's reasonable to expect that he would have been rejected as unqualified by the registered design professional or the Building Department."

Although the plaintiff appears to refer to two types of license, a home improvement contractor registration and a construction supervisor license, she does not allege that either license (or any other) was actually required for Ildemaro's performance of the work at issue. Though the questions have not been briefed before us, it appears the decedent did not need a home improvement contractor registration because he worked on one residential contracting undertaking and the aggregate contract price was under $500. See 780 Code Mass. Regs. § 110.R6.1.6(7) (2008). Likewise, it appears the decedent did not need a construction supervisor license because he was not supervising anyone. See 780 Code Mass. Regs. § 110.R5.1.3.1. The plaintiff points to no evidence -- not even in her expert's letter -- that the RDP or the city's building department reviews the qualifications of those who will engage in the work in cases in which no license is required. Nor is there evidence that, even if such review does occur, permit applications are rejected because individuals lack licenses they don't need. That the application would have been rejected due to Ildemaro's lack of qualifications is on this record, again, speculative.

c. The plaintiff argues next, "Third, the defendants would have had to have identified the price of the work as $200 in Section II.C. of the application. This should have served as a red flag due to the unfeasibility of obtaining (a) qualified workers to perform the siding work, and (b) scaffolding or an aerial lift to safely perform the second and third-story work, for such a low price. See New Bedford, Mass., Code of Ordinances, § 6-29 (2017)." But again, there is no evidence in the record before us from which an inference can be drawn that either the RDP or the building department rejects or investigates projects due to low cost listed on the application. Any conclusion that they do would, on this record, also be speculative.

d. Lastly, the plaintiff argues, "In addition, if the defendants made it through the application process and obtained the required permit, they would have been held accountable for ensuring that the siding work was performed in a safe manner. Under Mass. Regs. Code tit. 780, § 115.1 (2017), a building official may order work stopped if it is performed 'in a manner either contrary to the provisions of 780 C[ode] M[ass.] R[egs.] or dangerous or unsafe' " (emphasis omitted). But whether the building inspector would have stopped the work in this case, or come to the worksite before the accident, or, for that matter, at all, is speculative; the plaintiff has offered no evidence to indicate anything about the likelihood of such events.

Conclusion. Liability in negligence "obtains only where the conduct is both a cause in fact of the injury and where the resulting injury is within the scope of the foreseeable risk arising from the negligent conduct." Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 45, 907 N.E.2d 213 (2009). Viewing the evidence in the light most favorable to the plaintiff, there is insufficient evidence in the record to support a jury inference that any negligence of the defendants in failing to apply for a building permit in this case was a cause in fact of Ildemaro's death. Consequently, the judgment must be affirmed.

So ordered.

      Almeida and the decedent had lived together for fifteen years, and had two children together.

      Because the defendants share a last name, and because the decedent's brother, who shares the decedent's last name, is mentioned in the facts, we shall refer to all these individuals using their first names.

      In addition, Victor argues that he cannot be liable because the record establishes that his "only conduct consisted of acting as an agent of the homeowners, Giovanni and Chelsea." Given our disposition of the case, we need not reach the argument.

      Unless otherwise indicated, we refer to the 2010 version of the State Building Code, 780 Code Mass. Regs. §§ 100.00, which was operative at all times pertinent to this case.

      Although the plaintiff cites cases involving issues concerning a person's employment status, this was only to argue that the defendants retained sufficient control over the decedent to owe him a duty of care, which is a different question from whether the decedent was an independent contractor or an employee to whom OSHA regulations applied.

      Viewed in the light most favorable to the plaintiff, none of the exemptions to the RDP requirement apply, because the volume of the house is greater than 35,000 cubic feet. See 780 Code Mass. Regs. § 107.6.1. And there is no indication that the provision allowing the building inspector to grant a waiver of the site plan requirement, see 780 Code Mass. Regs. § 107.2.5, applied in this case. Therefore, for purposes of summary judgment we assume that an RDP's signature would have been a required part of the permit application.

      The 2008 version of § 110.R6 of the State Building Code is incorporated by reference into the 2010 version of the Code. See 780 Code Mass. Regs. § 110.R6 (2010).

      The 2017 text quoted by the plaintiff is the same as that appearing in the 2010 version of the State Building Code.


author: BLAKE, J.

text:
    COMMONWEALTH v. Rafael LEONER-AGUIRRE.
    No. 17-P-740
    Appeals Court of Massachusetts, Suffolk..
    Argued October 12, 2018 Decided December 13, 2018
    S. Anders Smith for the defendant.
    Julianne Campbell, Assistant District Attorney, for the Commonwealth.
    Present: Rubin, Wolohojian, & Blake, JJ.

      As is our custom, we spell the defendant's name as it appears in the indictments.

   BLAKE, J.

Following a jury trial in the Superior Court, the defendant, Rafael Leoner-Aguirre, was convicted of numerous crimes stemming from a shooting in Chelsea. He argued that he shot the victim in self-defense. On appeal, the defendant claims that the judge erred when she instructed the jury that the defendant had a duty to retreat, and that the judge improperly shifted the burden of production to the defendant on whether a self-defense instruction was warranted by the evidence. We affirm.

Background. The jury were presented with the following evidence. On April 16, 2014, at approximately 2:30 P.M. , Javier Servellon and Amilcar Portillo were walking down Broadway Street in Chelsea. Two men, Josue Morales and the defendant, approached Servellon and Portillo because they believed Servellon and Portillo had stabbed their friend. A fight broke out, initiated by the defendant and Morales. Servellon believed that one of the attackers had a weapon and tried to run away. However, Servellon turned back because he did not want to leave Portillo alone with the attackers. While trying to help Portillo, Servellon tried to hit the attackers with an object.

During the fight, Portillo saw the defendant display a gun and heard him say, "Today I'm going to kill you." Servellon saw the defendant "brace the gun," and turned around to flee. The defendant fired two shots at Servellon, who was struck in the buttocks. The defendant later admitted to others that he had shot Servellon and showed the gun to them.

In connection with a police investigation of the shooting, the defendant told police that one of "two young men" had displayed a gun, and that the man tripped and dropped the gun during the altercation. The defendant explained that he was mad so he picked up the gun, shot it once, and then hid it in his bag.

At trial, the defendant testified that he shot Servellon but did so in self-defense. He explained that he had problems with Servellon in the past, and that when he saw Portillo and Servellon on the street, he thought Portillo had a weapon. He testified that Portillo dropped a gun and that he, the defendant, "picked it up," "put it away," and then "r[an] to fight Servellon." He testified that Servellon tried to hit him twice with a bike chain, and that on Servellon's second attempt to hit him, he shot the gun at Servellon twice in self-defense.

At the close of the evidence, the defendant filed a motion for "a self-defense jury instruction." Over the objection of the Commonwealth, the judge so instructed the jury. The defendant did not object to the instruction as given.

Duty to retreat. At the close of evidence, the judge, without objection, instructed the jury that the defendant had a duty to retreat if he could do so in safety prior to using deadly force. On appeal, the defendant claims that "[t]he longstanding Massachusetts' duty to retreat rule, as an undue restriction of a fundamental right [to self-defense]," is unconstitutional. In support of his claim, the defendant relies on the holdings of McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), and District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), to suggest that the right to defend one's self is a fundamental constitutional right that cannot be limited by the "undue restriction" of a duty to retreat. He also relies on Brown v. United States, 256 U.S. 335, 41 S.Ct. 501, 65 L.Ed. 961 (1921), for the proposition that an individual does not forfeit his right to use deadly force, even when it is safe to retreat and he fails to do so.

In Heller, 554 U.S. at 635, 128 S.Ct. 2783, the United States Supreme Court concluded that a "ban on handgun possession in the home violates the Second Amendment [to the United States Constitution], as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." The Second Amendment was subsequently held applicable to the States. See McDonald, 561 U.S. at 791, 130 S.Ct. 3020. The defendant argues that the United States Constitution gives someone possessing a handgun the right to utilize it in self-defense even where he or she could retreat in safety without increasing the danger to his or her own life. There is no basis in law or history for this view. Where one can retreat in safety, it is not necessary to utilize deadly force in self-defense. Defendant's counsel conceded as much at oral argument.

Here, the defendant was in a public place and in possession of an unlicensed handgun. Even assuming that the defendant had a constitutional right to use his firearm in self-defense if necessary, it did not give him, or anyone, the right to utilize a firearm in self-defense when it is unnecessary, for example, when one can safely retreat as required by the defense of self-defense under Massachusetts law.

In essence, the defendant is asking us to supplant centuries of common law that requires a defendant to retreat before using deadly force, see Monize v. Begaso, 190 Mass. 87, 88-89, 76 N.E. 460 (1906), and to hold that the Constitution imposes a "stand your ground" regime even in States that have not adopted one. , Indeed, at oral argument, the defendant likened his position to the laws of some States that establish a right to self-defense against threats or perceived threats, even to the point of applying deadly force, the so called "stand your ground" laws. See, e.g., Fla. Stat. Ann. § 776.012, Ala. Code § 13A-3-23(b).

Barring some constitutional prohibition, States are free to adopt such laws. But Massachusetts has not, and nothing in Heller, McDonald, or the Second Amendment prohibits States from abiding by the long-standing rule that deadly force, including by the use of a firearm, may be used only when actually necessary in self-defense.

Nor does Brown, 256 U.S. at 342-344, 41 S.Ct. 501, in which the Supreme Court found that the judge erred by instructing the jury that the defendant was required to attempt to retreat before he could claim self-defense, provide any support for the defendant's argument. Brown was a common-law case, not purporting to interpret the United States Constitution, and it did not and does not prevent the Commonwealth from adopting the opposite rule. See Commonwealth v. Trippi, 268 Mass. 227, 232, 167 N.E. 354 (1929), quoting Commonwealth v. Peterson, 257 Mass. 473, 478, 154 N.E. 260 (1926) ("right of self-defence does not accrue to a person 'until he has availed himself of all proper means in his power to decline the combat' ").

On the merits of his self-defense claim, the defendant fares no better. "[T]he privilege to use self-defense arises only in circumstances in which the defendant uses all proper means to avoid physical combat." Commonwealth v. Mercado, 456 Mass. 198, 209, 922 N.E.2d 140 (2010), citing Commonwealth v. Benoit, 452 Mass. 212, 226, 892 N.E.2d 314 (2008). Accord Commonwealth v. Berry, 431 Mass. 326, 335, 727 N.E.2d 517 (2000). Here, no view of the evidence supports the suggestion that the defendant availed himself of any means to retreat before using deadly force on a public street, and a reasonable jury could so find. The defendant acknowledged that Servellon was shot in the backside while running from the scene. There was no evidence that the defendant was not able to walk away from the fight. Unlike in Brown, 256 U.S. at 344, 41 S.Ct. 501, there was no evidence here that the defendant feared for his life or that the attack was initiated by the victim. Out of an abundance of caution, the jury were instructed on the duty to retreat, which was part of the self-defense instruction that the defendant asked for and to which he did not object. Indeed, the defendant got more than he was entitled to receive. Accordingly, there was no error, let alone a substantial risk of a miscarriage of justice.

Self-defense instruction and burden of proof. The defendant claims that the judge improperly shifted the burden of proof to him by stating that he must present evidence in order to receive a self-defense instruction, and that this essentially forced him to testify. There are no facts in the record to support this burden-shifting claim. Near the end of the Commonwealth's case, the judge cautioned that she was not likely to give a self-defense instruction absent some additional evidence from the defendant. The defendant did not seek clarification, nor did he argue that he was entitled to the instruction based on the Commonwealth's case-in-chief. Rather, he raises the claims of burden shifting and compulsion to testify for the first time on appeal.

"A defendant is entitled to a self-defense instruction if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present."

Commonwealth v. Pike, 428 Mass. 393, 395, 701 N.E.2d 951 (1998). The Commonwealth, in its case-in-chief, introduced in evidence a transcription of the police interview of the defendant. The defendant told the police that he shot the gun out of anger rather than out of fear. He explained, "I got mad, I got mad, I got mad, then, because I really wanted to grab him, and it was like he tripped and dropped the gun. I was mad, I grabbed it and shot it." Although the Commonwealth presented evidence that Servellon used an object during the fight, at the close of the Commonwealth's case there was no evidence that the defendant "reasonably and actually believed that he was in 'imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force.' " Id. at 396, 701 N.E.2d 951, quoting Commonwealth v. Harrington, 379 Mass. 446, 450, 399 N.E.2d 475 (1980). Viewing the evidence in the Commonwealth's case-in-chief in the light most favorable to the defense, the absence of any evidence that the defendant attempted to avoid physical combat rendered a self-defense instruction unwarranted at that stage of the trial. See Commonwealth v. Espada, 450 Mass. 687, 692-694, 880 N.E.2d 795 (2008). There was no error in the judge's statement that she was unlikely to instruct on self-defense without additional evidence from the defendant.

Judgments affirmed.

      The defendant was convicted of assault with intent to kill, aggravated assault and battery by means of a dangerous weapon, assault and battery by means of a dangerous weapon, two counts of assault and battery, possession of a firearm without a firearm identification (FID) card, and possession of a loaded firearm without an FID card.

      Javier Servellon described the object as a big necklace or a chain. Portillo testified that the object was a rock, a brick, or a chain. A bystander described the object as a belt.

      In his motion, the defendant refers to Instruction 9.260 of the Criminal Model Jury Instructions for Use in the District Court (2009). Nonetheless, this error has no bearing on the defendant's argument, as the judge correctly instructed the jury in accordance with § 5.4.1 of the Massachusetts Superior Court Criminal Practice Jury Instructions (2d ed. 2013).

      Consistent with § 5.4.1 of the Massachusetts Superior Court Criminal Practice Jury Instructions, and the holding in Commonwealth v. Mercado, 456 Mass. 198, 208-209, 922 N.E.2d 140 (2010), the judge instructed the jury that "[t]he Commonwealth satisfies its burden of proving that the defendant did not act in proper self-defense if it proves ... the defendant did not use or attempt to use all proper and reasonable means under the circumstances to avoid physical combat before resorting to the use of deadly force." She further instructed that "[a] person must retreat unless he cannot do so in safety or unless retreat would increase the danger to his or her own life."

      "[The Supreme Judicial Court] is the highest appellate authority in the Commonwealth, and [its] decisions on all questions of law are conclusive on all Massachusetts trial courts and the Appeals Court." Commonwealth v. Vasquez, 456 Mass. 350, 356, 923 N.E.2d 524 (2010). See Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485-486, 796 N.E.2d 859 (2003) (Appeals Court has "no power to alter, overrule or decline to follow the holdings of cases" decided by Supreme Judicial Court).

      The adoption of the Massachusetts Constitution in 1780 did not displace centuries of common law. See Part II, c. 6, art. 6, of the Massachusetts Constitution ("All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution").

      The prosecutor asked the judge if she would give a self-defense instruction if the defendant "hasn't put any witnesses to show self-defense." The judge answered, "No, it's not likely if he doesn't put anyone on."


author: COLLEEN MARY O'TOOLE, J.

text:
    PETERSEN & PETERSEN, INC., Plaintiff-Appellee, v. Mark DINARDO, Defendant-Appellant.
    NO. 2017-G-0134
    Court of Appeals of Ohio, Eleventh District, Geauga County.
    Decided June 29, 2018
    Todd E. Petersen, Petersen & Petersen, 428 South Street, Chardon, OH 44024 (For Plaintiff-Appellee).
    Patrick DiChiro, 4141 Rockside Road, # 230, Seven Hills, OH 44131 (For Defendant-Appellant).
   COLLEEN MARY O'TOOLE, J.

{¶ 1} Appellant, Mark DiNardo, appeals from the August 18, 2017 judgment of the Chardon Municipal Court, Small Claims Division, adopting a magistrate's decision and ordering that appellee, Petersen & Petersen, Inc., recover $769.29 plus interest at the rate of four percent per annum and $93.00 in costs. For the reasons stated, we dismiss this appeal as moot.

{¶ 2} Appellee represented appellant in a real estate matter. Appellee filed a partition action on appellant's behalf in the Geauga County Court of Common Pleas, Case No. 13 M 001055. Appellant was the successful bidder at the auction for the property. Appellee performed all necessary work for appellant in connection with the transaction. However, appellant failed to pay appellee for services rendered.

{¶ 3} On February 16, 2017, appellee filed a complaint for the unpaid account in the Chardon Municipal Court, Small Claims Division, Case No. 2017 CVI 00143. Attached to the complaint were invoices revealing the total balance due in the amount of $769.29. ("Exhibit A").

{¶ 4} The case was tried before a magistrate on June 1, 2017. One week later, the magistrate issued a decision recommending judgment in favor of appellee in the amount of $769.29 plus interest and costs. Appellant filed objections to the magistrate's decision. Appellee filed a response.

{¶ 5} On August 18, 2017, the municipal court adopted the magistrate's decision ordering appellee to recover $769.29 plus interest at the rate of four percent per annum and $93.00 in costs, which is the subject of appellant's appeal. Appellant did not file a motion for stay with the municipal court or with this court.

{¶ 6} Garnishment proceedings were instituted and ordered in the municipal court on October 10, 2017. Appellee received a check from the municipal court on November 2, 2017, representing funds received from JPMorgan Chase, i.e., the garnishee bank, for payment in full of the judgment. On November 7, 2017, appellee filed a notice of satisfaction of judgment with the municipal court. The next day, appellee filed a certificate of release of judgment lien with the common pleas court.

{¶ 7} On appeal, appellant raises the following assignment of error:

{¶ 8} "The trial court erred by affirming the magistrate's decision in favor of appellee where appellee sued for services rendered on account and failed to attach an accounting."

{¶ 9} " ' "It is a well-established principle of law that a satisfaction of judgment renders an appeal from that judgment moot." ' Kogler v. Daniel Bros. Fuel Co. , 11th Dist. Lake No. 2002-L-122, 2003-Ohio-6774[ 2003 WL 22952593], ¶ 21, quoting Blodgett v. Blodgett , 49 Ohio St.3d 243, 245, 551 N.E.2d 1249 * * * (1990). In a situation where a ' "judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away (* * *) the right to appeal or prosecute error or even to move for vacation of judgment." ' Kogler, supra , at ¶ 21, quoting Lynch v. Lakewood City School Dist. Bd. of Edn. , 116 Ohio St. 361, 156 N.E. 188, * * *, paragraph three of the syllabus (1927) (emphasis sic). ' "(T)he mere filing of a notice of appeal from the judgment of the trial court without a stay of execution being issued does not deprive the trial court of authority to enforce its judgment." ' Atlantic Mtge. & Invest. Corp. v. Sayers , 11th Dist. Ashtabula No. 2000-A-0081, * * *, 2002 WL 331734 (Mar. 1, 2002), quoting White v. White , 50 Ohio App.2d 263, 362 N.E.2d 1013, * * *, paragraph five of the syllabus (8th Dist.1977).

{¶ 10} "Thus, the result of an appellant failing to obtain a stay of the judgment is that the nonappealing party can obtain satisfaction of the judgment despite the pending appeal. Marotta Bldg. Co. v. Lesinski , 11th Dist. Geauga No. 2004-G-2562, 2005-Ohio-558[ 2005 WL 336630], ¶ 18, citing Sayers, supra , at *6. 'Consequently, when "the nonappealing party is successful in obtaining satisfaction of judgment, the appeal must be dismissed because the issues raised in the appeal have become moot." ' Kogler, supra , at ¶ 21, quoting Hagood v. Gail , 105 Ohio App.3d 780, 785, 664 N.E.2d 1373 * * * (11th Dist.1995)." (Parallel citations omitted.) MHN SUB I, L.L.C. v. Donnelly , 11th Dist. Lake No. 2014-L-031, 2014-Ohio-4128, 2014 WL 4671675, ¶ 9-10.

{¶ 11} In the case at bar, since appellee has successfully obtained a satisfaction of judgment and there is no indication that appellant's satisfaction of judgment was anything other than voluntary, and since appellant failed to obtain a stay of execution or post a bond, it is clear that the instant appeal is moot and must be dismissed. Donnelly, supra , at ¶ 9-10 ; JPMorgan Chase Bank, N.A. v. Ritchey , 11th Dist. Lake Nos. 2007-L-017 and 2007-L-018, 2007-Ohio-5913, 2007 WL 3243916, ¶ 7.

{¶ 12} For the foregoing reasons, we conclude that appellant's appeal is moot. Accordingly, we will not consider appellant's assignment of error. The instant appeal is hereby dismissed.

THOMAS R. WRIGHT, P.J., CYNTHIA WESTCOTT RICE, J., concur.