text:
    Michael ATEEK v. BOSTON HOUSING AUTHORITY.
    17-P-1305
    Appeals Court of Massachusetts.
    Entered: June 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Michael Ateek appeals from a judgment, entered after a bench trial, finding for the defendant Boston Housing Authority (BHA) on Ateek's establishment clause and discrimination claims. We affirm.

Background. The judge found that the BHA owns and manages a public housing development known as the Holgate Apartments (Holgate), where Ateek is a tenant. Holgate has a common room that its tenants use for a variety of leisure activities. Sometime in 2009 or 2010, members of a tenants' association hung colored, light-emitting diode (also known as LED), string lights in the common room, and maintained them there with the BHA's permission. The string lights remain up all year; while Ateek testified that he had "only seen them lit during the Christmas holiday period," the property manager testified that the lights had not been turned on since she started her position in May of 2016 and that she had no reason to believe they had ever been turned on. She further testified that the lights were considered "a form of just basic decoration. There are [a] number of different things in the community room that are just forms of decoration[:] plants, pictures, [et cetera]."

Ateek complained that the lights' presence and occasional use in the common room established a State-sponsored religion in violation of the establishment clause of the First Amendment to the United States Constitution. The judge found as fact that the lights were available to "all BHA tenants at Holgate ... without regard to their religion" for "festive use including both religious celebration (Christmas, Chanukah or other holidays) and secular celebration (birthdays, anniversaries, national holidays, parties or other festive occasions)."

Discussion. On appeal, Ateek proceeds on the assumption that the case is governed by the three-part test for establishment clause challenges to statutes that was set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). "Under the Lemon analysis, ... a court must consider three factors: 'First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion." ' " Freedom From Religion Foundation v. Hanover Sch. Dist., 626 F.3d 1, 9 (1st Cir. 2010), cert. denied, 564 U.S. 1004 (2011), quoting from Lemon, supra.

We approach the case on the basis Ateek suggests, examining the BHA's action, or inaction, in light of the three Lemon factors. We stress at the outset, however, that there was no evidence or finding that the BHA itself hung the lights or mandated their use. Instead, the BHA appears merely to have tolerated their presence and their use by tenants. There was no evidence or finding that the lights were-or were perceived as being-furnished, sponsored, or endorsed by the BHA.

As to the first Lemon factor, there was no evidence or finding that the purpose of the BHA's action in tolerating the presence of the lights-hung by tenants and available for their use without regard to their religious beliefs or the religious or secular nature of the occasion-was anything other than secular. Although Ateek testified that he personally had "only seen them lit during the Christmas holiday period," the judge was not obliged to conclude, from this limited evidence about tenants' use of the lights, that the BHA's purpose in tolerating the lights presence had anything to do with religion.

As to the second Lemon factor, the judge found "no evidence that the presence of the string lights had a principal or primary effect of either advancing an established religion or inhibiting any religion or religious practice at the BHA development." On appeal, Ateek argues that "[t]he religion of Christmas was advanced unduly, inhibiting [his] belief in Judaism." This bare assertion, unsupported by any record evidence or citation to legal authority, is insufficient to overcome the judge's conclusion.

As to the third Lemon factor, the judge found "no evidence that the BHA by its actions or inactions with respect to the presence of string lights in the common room caused any excessive governmental entanglement with religion." On appeal, Ateek expressly concedes that he "concurs with the decision on this point."

Conclusion. After considering the Lemon factors and Ateek's arguments, we see no reason to disturb the judgment.

Judgment affirmed.

      On appeal, Ateek expressly abandons his discrimination claim, which appears to have involved an interaction with a BHA security guard.

      Ateek's brief on appeal argues that there was no evidence that a tenants "task force" had any role in installing or maintaining the lights. The judge's decision, however, referred only to a tenants "association," and Ateek does not explain what relationship, if any, there might be between the "task force" and the "association," or how that issue bears on his establishment clause claim.

      In November of 2016 the BHA removed the lights to perform "pest management and basic maintenance cleanup of the area." The lights had not been rehung by the time of trial, and the property manager testified that as far as she was aware there were "no plans to hang lights on the surrounding perimeter of the room because we have brand new energy efficient light fixtures that now are hanging in the room." For the purpose of Ateek's claims, however, the judge assumed that the lights would be rehung after the BHA completed repairs.

      We therefore need not reach Ateek's argument that the BHA erred in relying on the establishment clause analysis in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989), abrogated on other grounds, Greece v. Galloway, 134 S. Ct. 1811 (2014).

      Ateek argues that the judge misplaced reliance on American Atheists, Inc. v. Port Authy. of N.Y. & N.J., 760 F.3d 227 (2d Cir. 2014). As we read the judge's decision, however, he cited the case only for its statement of the second Lemon factor, not for any analogy between the facts of the case and the facts of this one.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Jose RODRIGUEZ.
    16-P-1029
    Appeals Court of Massachusetts.
    Entered: June 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On appeal from convictions of murder in the second degree, unlawful possession of a firearm, and unlawful possession of ammunition, the defendant, Jose Rodriguez, argues that (1) the trial judge erred in denying his motion for required findings, (2) the judge erred in allowing testimony regarding his tattoos, (3) the prosecutor's closing argument was improper, (4) the judge erred in his jury instruction regarding cooperating witness testimony, and (5) the judge erred in his jury instruction on reasonable doubt. We affirm.

Background. Rodriguez and three others were indicted for murder in the first degree, unlawful possession of a firearm, and unlawful possession of ammunition as a result of a murder in Holyoke. The defendant and one codefendant, Joshua Santos, were tried together in the Superior Court in June, 2015. Both defendants were convicted of murder in the second degree, unlawful possession of a firearm, and unlawful possession of ammunition. Only Rodriguez's appeal is before us.

At trial, two of the Commonwealth's witnesses, Jose Santiago and Damien Alvarado, provided testimony as cooperating witnesses. Santiago and Alvarado provided details as to what they observed regarding the shooting, the facts leading up to the shooting, and the relationships among the individuals including their roles as members of the La Familia gang.

Based on the evidence at trial the jury could have found the following: On June 2, 2013, Juan Quinones was shot and killed at 16 Cabot Street, Holyoke by Rodriguez. Rolando Colon along with other members of the La Familia gang arranged to shoot Quinones. Quinones went to the Cabot Street location to visit his childhood friend, William Vasquez. Within twenty minutes of Quinones's arrival, Rolando Colon joined Quinones and Vasquez on the porch. While the three men were talking Rodriguez arrived on the porch and shot Quinones multiple times.

Discussion. 1. Sufficiency of the evidence. The defendant contends the judge erred by denying his motion for required findings of not guilty. Specifically Rodriguez argues that there was insufficient evidence to support the verdicts of guilty since they were based on the uncorroborated testimony of cooperating witnesses. Rodriguez made no such argument at trial that would have preserved the issue for appellate review. We therefore review to determine if any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Marinho, 464 Mass. 115, 118 (2013).

"There is no requirement that a cooperating witness's testimony be corroborated unless the witness is immunized under G. L. c. 233, § 20E." Commonwealth v. Lessieur, 472 Mass. 317, 330 (2015). Nothing in the record indicates that either Santiago or Alvarado received immunity pursuant to § 20E. Both witnesses testified pursuant to a cooperation agreement with the Commonwealth. There is no requirement of corroboration in this case.

Further, we decline the defendant's invitation to revisit whether the testimony of a cooperating witness must be corroborated before a defendant may be convicted. The creation of such a rule has been rejected by the Supreme Judicial Court. See Commonwealth v. Thomas, 439 Mass. 362, 371-372 (2003), and Commonwealth v. Lessieur, supra. "[W]e have uniformly and unequivocally held we have no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided." Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003), and cases cited. It is for the Supreme Judicial Court to decide whether to revisit this issue.

Alternatively Rodriguez claims the denial of his motion for required findings was error because the "dubious testimony" of the cooperating witnesses was insufficient to support the convictions since their testimony tended "to sustain either of two inconsistent propositions."

The defendant relies on Commonwealth v. Smith, 342 Mass. 180, 183 (1961), in support of his argument. The circumstances in Smith, supra, are distinguishable from those in the present case. There, the proposition relied on by the defendant related to circumstantial evidence. Here, the jury had direct evidence from the government's witnesses regarding Rodriguez's actions, including shooting Quinones. The evidence was substantial enough so that the question of guilt was not left to conjecture or surmise. It was for the jury to assess the credibility of the witnesses and to determine the facts. We find no error in the judge's denial of the motion for required findings of not guilty.

2. Tattoo testimony. Next, Rodriguez maintains the judge abused his discretion in permitting Santiago to testify about the meaning of Rodriguez's teardrop tattoo. To establish that a judge abused his or her discretion in denying a motion to exclude testimony, a defendant must show that there was " 'a clear error of judgment in weighing' the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (citations omitted). In this case, we fail to discern any abuse of discretion by the judge.

Over the objection of Rodriguez, Santiago testified about the meaning of Rodriguez's filled-in teardrop tattoo. Santiago testified that he knew the meaning of the tattoo from "basic knowledge in the streets, like things you learn over time." Based on his experience, Santiago indicated that the common understanding of a filled-in teardrop meant the bearer of the tattoo had killed someone. Santiago was not testifying as an expert. Santiago's testimony was grounded in his years of experiences in gang and street life. This type of lay opinion is admissible where it is not based on "scientific, technical, or other specialized knowledge." Mass. G. Evid. § 701 (2018). See Commonwealth v. Canty, 466 Mass. 535, 541-542 (2013).

3. Closing argument. At trial, defense counsel objected to the prosecutor's closing argument about the meaning of Rodriguez's tattoo. We review this claim for prejudicial error. Commonwealth v. Garcia, 75 Mass. App. Ct. 901, 901 (2009). The defendant contends that the prosecutor's reference to what the teardrop tattoo means to the La Familia gang was improper as it argued facts not in evidence.

"Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Felder, 455 Mass. 359, 368 (2009). Although prosecutors are not permitted to misstate the evidence or refer to facts not in evidence during closing arguments, Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987), they are entitled "to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting from Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Here, the prosecutor did just that. Evidence admitted at trial included that the defendant obtained two new tattoos after the shooting of Quinones. One tattoo was the initials "L.F.," and the second was a filled-in teardrop. The prosecutor's comment was a fair inference from the evidence. See Commonwealth v. Harris, 468 Mass. 429, 454 (2014). The jury heard testimony of Rodriguez's role in La Familia, his involvement with the shooting of Quinones, and what the teardrop tattoo means in street life. Taken with the judge's instruction to the jury that they should ignore any facts discussed during closing arguments that they do not remember, we conclude that there was no error, let alone a prejudicial error.

4. Cooperating witness jury instruction. For the first time on appeal Rodriguez claims the jury instruction regarding the testimony of cooperating witnesses was insufficient. Consequently, we must determine whether any error created a substantial risk of a miscarriage of justice. See Marinho, 464 Mass. at 118. In his final charge, the judge correctly instructed the jury regarding cooperating witness testimony in accordance with Commonwealth v. Ciampa, 406 Mass. 257, 264-266 (1989). There was no error.

5. Reasonable doubt jury instruction. Lastly, Rodriguez maintains that the judge erred in not providing the jury with the definition of reasonable doubt set forth in Commonwealth v. Russell, 470 Mass. 464, 477-478 (2015). The judge's instruction here tracked Commonwealth v. Webster, 5 Cush. 295, 320 (1850). The defendant did not preserve this error. Although defense counsel objected to the reasonable doubt instruction, he declined further instruction when offered by the judge. Since the defendant did not preserve this issue below, we review under the substantial risk of a miscarriage of justice standard. Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001).

" '[T]he Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof.' Commonwealth v. Pinckney, 419 Mass. 341, 342, (1995), quoting Victor v. Nebraska, 511 U.S. 1, 5 (1994). Rather, we look to whether the reasonable doubt instruction adequately impressed on the jury 'the need to reach a subjective state of near certitude of the guilt of the accused.' Victor, supra at 15, quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979). 'In reviewing a reasonable doubt instruction, we consider whether there is a "reasonable likelihood" that the instruction led the jury to believe that they could convict the defendant on proof insufficient to dispel reasonable doubt.' Commonwealth v. Denis, [442 Mass. 617,] 621 [ (2004) ], quoting Pinckney, supra." Commonwealth v. Figueroa, 468 Mass. 204, 220 (2014). Here although the judge erred by not including the model instruction set out by the court in Russell, the reasonable doubt instruction used did not create a substantial risk of a miscarriage of justice. We conclude that the judge's use of the Webster-related instruction without the Russell language did not cause the jury to believe that they could convict the defendant on something less than proof beyond a reasonable doubt.

Judgments affirmed.

      Rolando Colon, Joshua Santos, and Jose Santiago.

      G. L. c. 233, § 20I, inserted by St. 1970, c. 408, provides that "[n]o defendant in any criminal proceeding shall be convicted solely on the testimony of, or the evidence produced by, a person granted immunity under the provisions of section twenty E."


text:
    COMMONWEALTH v. Luis M. BIAGGI.
    17-P-422
    Appeals Court of Massachusetts.
    Entered: June 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The pro se defendant appeals from the denial of his motion for new trial, in which he seeks to withdraw guilty pleas he entered in 2007. He claims that at his plea hearing the judge did not advise him of the maximum and minimum sentences that could be imposed, and that defense counsel incorrectly advised him of the sentences he would receive and the parole consequences. Because there was no error in the denial of the new trial motion, we affirm.

1. Background. The defendant was charged in connection with two separate criminal events that occurred in 2005. In the first, the defendant was charged with shooting and seriously injuring a man while the man was sitting in his car on a public street in Springfield (the street shooting). In the second, the defendant and three coventurers were charged with forcibly invading a home in Holyoke, holding eight persons therein at gunpoint, threatening them, and robbing them (the home invasion/kidnapping).

On April 27, 2007, the defendant pleaded guilty to various charges relating to each of these events. The defendant was represented by counsel, and a transcript of the proceedings is in the appellate record. The pleas were made pursuant to a plea bargain and an agreed-upon sentencing recommendation. The record also contains a chart, which was discussed at the plea hearing, which details the various charges against the defendant, and which specifies the agreed-upon recommended sentence for each charge. During the plea colloquy the defendant told the judge that he had reviewed the chart, and that it reflected his understanding of the plea agreement. Defense counsel also confirmed he had explained the "potential penalties" for the charges to the defendant. After the colloquy, the judge made the necessary findings that the pleas were voluntarily, knowingly, and intelligently made, and then sentenced the defendant pursuant to the agreed-upon recommendation, as set forth in the chart.

In brief, on the home invasion/kidnapping charges the defendant received a sentence of fifteen to twenty years, with multiple lesser sentences to run concurrently, and also concurrently with a Federal sentence the defendant was then already serving. As to the street shooting charges, the defendant received a sentence of five to seven years, to run from and after the completion of his sentences on the home invasion/kidnapping charges. The net effect of these sentences was an overall sentence of twenty to twenty-seven years in prison.

In August, 2015, the defendant filed a motion for new trial, seeking to withdraw his guilty pleas on the ground that they were not made voluntarily, knowingly, or intelligently. The defendant raised several arguments, but on appeal he presses only two: (1) that the plea judge violated Mass.R.Crim.P. 12(c)(3)(B), as appearing in 442 Mass. 1511 (2004), because the judge failed to advise the defendant of the maximum and minimum sentences for the charges against him, and (2) that the defendant "was not aware of the exact sentence he was facing and the court never apprised the defendant of such." A Superior Court judge-the same judge who originally sentenced the defendant-denied the defendant's motion and issued a memorandum decision containing his reasoning and an order denying his motion. The defendant appeals.

2. Discussion. The defendant claims that the motion judge abused his discretion in denying the defendant's motion for new trial. A motion to withdraw a guilty plea is treated as a motion for new trial, and we review a decision denying such a motion for "a significant error of law or other abuse of discretion." Commonwealth v. Williams, 89 Mass. App. Ct. 383, 388 (2016), quoting from Commonwealth v. Scott, 467 Mass. 336, 344 (2014). "The judge's disposition of the new trial motion will not be reversed unless it is manifestly unjust ...." Commonwealth v. Hung Tan Vo, 427 Mass. 464, 467 (1998). "A reviewing court extends special deference to the action of a motion judge who was also the trial judge." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

There was no abuse of discretion here. As to the defendant's first argument, the Commonwealth concedes that the plea judge did not advise the defendant of the applicable maximum and minimum sentences at the plea hearing, as required by rule 12. This court has made clear, however, that noncompliance with rule 12 does not automatically render a guilty plea involuntary. Rather,

"[A]dherence to or departure from [ rule 12(c) ] is but one factor to be considered in resolving whether a plea was knowingly and voluntarily made .... Each case must be analyzed individually to determine whether compliance with rule 12 would have made a difference in the decision of the defendant to plead guilty."

Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 580 (2001) (quotation omitted).

In rejecting the defendant's argument, the motion judge noted that at the plea hearing the defendant's counsel stated that he had advised the defendant of the possible sentences; the judge also pointed out that the defendant had confirmed he had reviewed the chart. Even more important, however, was that the defendant's motion for new trial failed to show the necessary prejudice. The defendant was pleading to felonies that involved possible life sentences. As the judge noted, "the defendant does not argue that his decision to plead guilty would have been different if the court had recited the maximum and minimum sentences in open court."

We agree with the judge's reasoning. Even in this court, the defendant does not explain why he would have changed course and not pleaded guilty had he been advised of the applicable maximum and minimum sentences. Rather, the defendant focuses on other facts of which he allegedly was unaware. For example, in this court he claims that he was not advised of the likely parole consequences of his pleas, and that he did not understand the interplay between his State sentences, and the Federal sentences he was then serving. The defendant does not, however, claim any consequence from not being advised of his maximum or minimum sentences under rule 12. His argument based upon noncompliance with rule 12 was properly rejected. See Rodriguez, 52 Mass. App. Ct. at 579, 581.

The defendant also argues on appeal that his plea counsel "misadvised" him regarding the likely sentence he would receive and its parole consequences. This argument is essentially a claim of ineffective assistance of counsel, but no ineffective assistance claim was presented in the Superior Court. While the defendant did claim in his motion for new trial that he "was not aware of his exact sentence[s]," the defendant did not develop a factual record in the Superior Court from which an ineffective assistance argument could be evaluated. In this court, the defendant has attempted to present a new affidavit, which was not presented to the Superior Court, and which contains more detailed claims that he was not adequately advised by counsel. However, we cannot evaluate facts presented for the first time on appeal, where those facts were not presented to the Superior Court in the new trial motion. See Commonwealth v. Cortez, 438 Mass. 123, 131 (2002) (defendant's claim of ineffective assistance rejected where factfinding is required and the argument is based upon facts not presented in motion for new trial).

For the reasons above, to the extent that the defendant is making an ineffective assistance claim in this court, we reject it as unsupported by the record that is properly before us. See Commonwealth v. Zinser, 446 Mass. 807, 810-812 (2006), quoting from Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) ("[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight").

Order denying motion for new trial affirmed.

      Each criminal event gave rise to multiple charges. We have only identified the longest sentence arising from each event; as to each event there were lesser charges to which the defendant also pleaded guilty, and as to which the sentences ran concurrently.

      At the time of defendant's 2007 pleas, Mass.R.Crim.P. 12(c)(3), as appearing in 442 Mass. 1511 (2004), stated, "The judge shall inform the defendant on the record, in open court: ... (B) where appropriate, of the maximum possible sentence on the charge, and ... of the mandatory minimum sentence, if any, on the charge ...."

      The defendant moved to expand the record to include materials that were not before the Superior Court judge, including his new affidavit (docket entry # 9). The Commonwealth has opposed the motion (docket entry # 13) and moved to strike certain materials from the defendant's expanded record appendix, including his new affidavit that was not before the Superior Court judge. (Docket entry # 12.) As we have addressed the affidavit in the body of this decision, no further action is necessary on these motions.

      The defendant seemed to argue below that he was unaware that his sentence on the street shooting charges would run from and after the home invasion sentence. The judge rejected that argument based upon several facts from the record of the sentencing, including the defendant's statement that he had reviewed the chart. There was no error.


text:
    COMMONWEALTH v. Sean WELENC.
    17-P-1003
    Appeals Court of Massachusetts.
    Entered: June 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Sean Welenc, was found guilty of operating a motor vehicle while under the influence of liquor, second offense, G. L. c. 90, § 24(1)(a )(1), and found responsible for a marked lanes violation, G. L. c. 89, § 4A. The defendant argues on appeal that there was error that created a substantial risk of a miscarriage of justice where the trial judge did not, sua sponte, instruct the jury that the testimony of a police officer was lay and not expert opinion. We affirm.

At trial, the Commonwealth's sole eyewitness was a police officer who testified to his observations of the defendant before, during, and after the officer conducted field sobriety tests. At the close of evidence, the trial judge instructed the jury in accordance with Instruction 5.310 of the Criminal Model Jury Instructions for Use in the District Court (2013). This instruction informed the jury that it was for them "to determine whether to rely on" the evidence of the defendant's performance during the field sobriety tests. Counsel for the defense did not object to the jury instruction. The defendant now argues on appeal that the judge should have sua sponte cautioned the jury that the officer's testimony was lay opinion, and that the judge's failure to do so constituted an error.

In the absence of a valid objection, the sole question before us is whether the instruction as given was an error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Wood, 380 Mass. 545, 547 (1980). In accordance with the District Court model jury instructions, the judge clearly instructed the jury that it was in their province alone to determine whether the defendant was impaired by alcohol and whether to place any weight on the testimony concerning field sobriety tests. We discern no error. The officer's testimony concerned his observations of the defendant that informed the officer's opinion, such as the defendant not following instructions, lifting his arms for balance during the tests, and stumbling. Independent of the tests, the officer also testified that, among other things, the defendant's vehicle twice crossed substantially over the fog line, the defendant had bloodshot and glassy eyes, the defendant had an odor of an alcoholic beverage, and, when asked for his license and registration, the defendant initially provided the officer with a credit card.

The defendant's reliance on Commonwealth v. Gerhardt, 477 Mass. 775 (2017), is misplaced. That case makes unambiguously clear that there is a significant distinction between testimony concerning field sobriety tests and lay opinion regarding alcohol, as opposed to testimony and opinion regarding marijuana. Id. at 785-787. With respect to alcohol, an officer's lay opinion testimony regarding a defendant's level of sobriety or intoxication "is proper because it is not based on scientific, technical, or other specialized knowledge that would require expert testimony, but, rather, lies within the realm of common experience." Id. at 785.

Judgment affirmed.

      The marked lanes violation was filed with the defendant's consent.

      After the jury posed a question about the weight to be given to the field sobriety tests, the judge charged them again with the same model instruction. "We presume that a jury follow all instructions given to it." Commonwealth v. Watkins, 425 Mass. 830, 840 (1997).


text:
    MARTHA'S VINEYARD LAND BANK COMMISSION v. Hugh C. TAYLOR, trustee, & others.
    17-P-1277
    Appeals Court of Massachusetts.
    Entered: June 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of Taylor Realty Trust.

      Jeanne S. Taylor and Brian M. Hurley, as trustees of Taylor Realty Trust.

   The defendant trust claims a prescriptive easement across the plaintiff's property. After a bench trial in this declaratory judgment action brought by the plaintiff, a judge of the Land Court found the trust had failed to show that its use of the land was notorious, as is required for establishment of such an easement. We affirm the judgment.

Background. Steamboat Landing (the property) is a remote, undeveloped, cliffside parcel in Aquinnah, on Martha's Vineyard. It is owned by the plaintiff, Martha's Vineyard Land Bank Commission (Land Bank), which acquired it in 2011. The property overlooks the ocean to the north. It is most directly accessible only by a path that connects to various paths and driveways traversing other lots. The property is entirely covered in thick vegetation, except for the single, narrow path that cuts through the property from its southwest corner to the cliff's edge. From the property, a secluded portion of a town-owned beach is accessible by clambering down the rocky cliff-approximately a thirty-foot descent.

Taylor Realty Trust (the trust) owns a parcel of land on Lighthouse Road in Aquinnah. Situated on the trust's land is the Outermost Inn, an inn and restaurant owned and operated by defendant trustees Hugh and Jeanne Taylor (Taylors). Steamboat Landing is less than a ten-minute walk through the woods from the inn. From the time the inn opened for business in 1990 until the date of trial, its paying guests traversed a wooded path from the inn to Steamboat Landing, and then used the path over Steamboat Landing to access the cliff and the beach below it. This use was regular, but minimal and brief-typically consisting of each guest walking across the path to get to the beach in the morning, and returning later in the day.

It only takes a minute or two to cross the entire length of Steamboat Landing and reach the top of the cliff. Persons using the path are not visible from the nearest public and private ways, or from any nearby residence or the inn. Both entrances to the Steamboat Landing path-at the southwest corner of the property and at the top of the cliff-are inconspicuous. The judge found that although the Taylors occasionally trim the edge of the Steamboat Landing path, the trimming is not obvious and does not noticeably change its appearance.

At the crux of this appeal is the trial judge's finding that "a reasonably diligent owner of Steamboat Landing would not have discovered that the Taylors and their guests used the Steamboat Landing path for access to the beach because the character of the land obscured their use."

Discussion. A prescriptive easement is established when there has been "open, notorious, continuous and adverse use for twenty years." Ryan v. Stavros, 348 Mass. 251, 263 (1964). To be notorious, a use "must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises." Lawrence v. Concord, 439 Mass. 416, 420 (2003), quoting from 2 American Law of Property § 8.56 (Casner ed. 1952). "The purpose of the requirement of 'open and notorious' use is to place the true owner 'on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.' " Lawrence, 439 Mass. at 421, quoting from Ottavia v. Savarese, 338 Mass. 330, 333 (1959). See White v. Hartigan, 464 Mass. 400, 416 (2013) ("to be notorious, the use must put the landowner on constructive notice of the adverse use"); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 44 (2007).

"The burden of proving every element of an easement by prescription rests entirely" with the party claiming the easement. Rotman v. White, 74 Mass. App. Ct. 586, 589 (2009). "Whether the elements of a claim for a prescriptive easement have been satisfied is essentially a fact question for the trial judge." Denardo v. Stanton, 74 Mass. App. Ct. 358, 363 (2009). See Boothroyd, 68 Mass. at 41 n.3.

Such findings "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." White, 464 Mass. at 414, quoting from Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). "A finding of fact by the trial judge will not be deemed clearly erroneous unless the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." White, 464 Mass. at 414, quoting from New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977).

Here, the trial judge found that the seven-room inn has an occupancy rate between eighty-five and ninety per cent from mid-May to mid-October. He also found that during the summer, inn guests typically use the beach below Steamboat Landing at least once per day. Moreover, there was testimony that the Taylors did nothing to hide their guests' use of the Steamboat Landing path, and actively encouraged it. Despite the frequency and openness of the that use, however, the trial judge found it was undetectable to the Land Bank for a number of reasons, including the remoteness of the property, the obscurity of the path itself, the very short length of time it takes to traverse the path across the property, and the fact that use of the path did not appear to alter its appearance in any readily observable way. The judge also found that the beach can be reached by other means and, thus, there is no way to tell whether those using it at any given time arrived via the path across Steamboat Landing. Moreover, he found that although the Taylors have not attempted to conceal the inn's (and their own) use of the path, "they have not made it obvious either."

"The extent of openness and notoriety necessary for the acquirement of title by adverse use varies with the character of the land." Tinker v. Bessel, 213 Mass. 74, 76 (1912). Here, based on all of the evidence, including the remote and overgrown character of the property, the trial judge found the trust's use was not sufficiently notorious to provide notice that would have allowed the Land Bank and its predecessors to vindicate their rights. See White, 464 Mass. at 416. See also Boothroyd, 68 Mass. App. Ct. at 44-45 ("Because the locus was ... thickly wooded land with dense brush that obscured large parts of it, it was incumbent upon John [Boothroyd] to establish a use, of a degree or character, that would reasonably permit a trier of fact to infer that such a use could have been discovered by a reasonably diligent landowner ...").

The judge's subsidiary findings are well supported by the record, which we have carefully reviewed. We see no error in the judge's ultimate finding that the trust's use of Steamboat Landing was not notorious for purposes of a prescriptive easement. In the absence of clear error, we affirm the judgment. See White, 464 Mass. at 414 ; Denardo, 74 Mass. App. Ct. at 363.

Because we affirm based on the trial judge's stated reasoning, we need not consider whether the trust's acquisition of prescriptive rights was foreclosed by operation of G. L. c. 260, §§ 21 and 31, during the time the property was owned by the Land Bank and by its immediate predecessor, the Vineyard Open Land Foundation.

Judgment affirmed.

      At the turn of the twentieth century, the Fall River Steamboat Company brought passengers to the beach in front of Steamboat Landing to view the Gay Head cliffs.

      "We take the facts from the trial judge's findings, to the extent that the same are not clearly erroneous, amplified by aspects of the trial record that are not otherwise disputed." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40, 41 n.4 (2007).

      Lighthouse Road has also been referred to as Lobsterville Road. To the extent there is a distinction between Lighthouse and Lobsterville Roads, it is not relevant to this decision.

      The Taylors are two of the trust's trustees and are also its beneficiaries.

      In 2013, the Land Bank posted a notice pursuant to G. L. c. 187, § 3, ending the period in which a prescriptive easement could have been acquired. See White v. Hartigan, 464 Mass. 400, 415, 417-418 (2013).

      Although the evidence submitted at trial included testimony regarding personal use of the path by the Taylors and their family and guests, the parties do not seem to dispute that the prescriptive period for obtaining an easement encompassing the trust's commercial use began when the inn opened for business in 1990. See Tinker v. Bessel, 213 Mass. 74, 76 (1912), quoting from Middlesex Co. v. Lowell, 149 Mass. 509, 511 (1889) ("It is the general rule that 'prescriptive rights are measured by the extent of the actual adverse use of the servient property' "). We omit here facts related to the Taylors' pre- and post-1990 personal use of the path because such use was plainly even less notorious than the use by inn guests. Although our discussion infra focuses on commercial use of the path, we affirm the judgment insofar as it declares that neither the trust nor the Taylors hold an easement for personal use.

      The trust's parcel does not directly abut Steamboat Landing. The path from the inn to Steamboat Landing crosses five other parcels. The only portion of the path to the beach at issue here, however, is the section that traverses Steamboat Landing.

      The Land Bank initiated this action, seeking a declaration that the Taylors and their invitees (including inn guests) have no right to use the path and also an injunction barring such use.

      The judge took a view after the conclusion of the trial. "A view is not technically evidence and subject to all the principles applicable to evidence in the technical sense." Berlandi v. Commonwealth, 314 Mass. 424, 451 (1943). Nevertheless, "it has been said that it inevitably has the effect of evidence, and information properly acquired upon a view 'may properly be treated as evidence in the case.' " Ibid., quoting from Keeney v. Ciborowski, 304 Mass. 371, 372 (1939) (internal citations omitted).

      The judge wrote that although the Taylors' son, Isaac, testified that he works on the Steamboat Landing path once every week or two during the growing season, "I do not believe that he has ever done anything more than minor trimming, with no noticeable effect. He certainly has not done anything that would alert the path's owners, the Land Bank, that work was being done." Moreover, the judge wrote, "[a]s I observed while on my view, the brush that surrounds the Steamboat Landing path is so overgrown that I do not find it credible that Isaac, the Taylors, or anyone on their behalf did anything more than sporadic trimming there, if that. To the extent that they did any work to the Steamboat Landing path, the area is so remote and obscured, and the work done so minor, that no one would have noticed."

      The judge also wrote that use of the path by the Taylors and guests of the inn was "effectively undetectable, and thus not notorious as the law requires."

      "Because the requirement of open and notorious use 'is intended only to secure to the owner a fair chance of protecting himself,' a property owner's actual knowledge of a claimant's adverse use of the property satisfies this element." White, 464 Mass. at 417 (citation omitted). See Rotman v. White, 74 Mass. App. Ct. 586, 589 (2009). We are aware that in 2010, prior to its acquisition of Steamboat Landing, the Land Bank became aware of the trust's use of the path. This fact alone, however, sheds no light on whether or when any predecessor owner possessed such knowledge between 1990 and 2010.

      The inn is closed for the remainder of the year.

      Adverse possession requires the additional element of exclusivity; otherwise, it shares the same elements as prescriptive easement. Boothroyd, 68 Mass. App. Ct. at 44 n.9.

      The trust quarrels with the judge's finding that the Land Bank and its predecessors gave permission to local residents to use the path, which was relevant to his further determination that the inn guests were indistinguishable from those residents who used the parcel permissively. We need not reach the question of whether the evidence supported the inference that use by local residents was permissive (cf. Houghton v. Johnson, 71 Mass. App. Ct. 825, 842-843 [2008] ) because the judge's numerous additional findings supported his conclusion even in the absence of such permissive use by non-invitees of the Taylors.


text:
    COMMONWEALTH v. Omar DEJESUS.
    17-P-1323
    Appeals Court of Massachusetts.
    Entered: June 22, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a bench trial in the District Court, the defendant was convicted of two counts of violating an abuse prevention order. G. L. c. 209A, § 7. On appeal, the defendant challenges one of those convictions, claiming that the evidence underlying the conviction-text messages received by his former girl friend-had not been properly authenticated and therefore should not have been admitted at trial. More specifically, the defendant argues that the evidence did not establish that he authored the text messages. We disagree and affirm.

"[B]efore admitting an electronic communication in evidence, a judge must determine whether sufficient evidence exists 'for a reasonable jury to find by a preponderance of the evidence that the defendant authored' the communication." Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366 (2014), quoting from Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). The judge "may look to confirming circumstances that would allow a reasonable jury to conclude that this evidence is what its proponent claims it to be." Purdy, supra at 449 (quotation omitted). We review the judge's decision for an abuse of discretion. See Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 585 (2017).

Here, the evidence established that the defendant and the victim were in a romantic relationship from 2003 to 2016 and had two daughters together. After the relationship ended, the victim sought and received an abuse prevention order prohibiting the defendant from contacting her or the children "in person, by telephone, in writing, electronically or otherwise." Thereafter, the victim received text messages from the same telephone number previously used by the defendant to communicate with her via text messages. One of these earlier text messages included a photograph of the defendant holding his nephew. From this evidence, the judge could reasonably infer a direct connection between the defendant and the telephone number from which the text messages were sent.

The content of the text messages reinforced their link to the defendant. The messages read, in part, "I did mess up in the past but ... I'm ready to be honest baby and love you and make you happy"; "[t]alk to me baby ... [i]t's me, the father of the girl's [sic]"; and "I will always love you." These statements, considered in the context of the victim's thirteen-year relationship with the defendant and the outstanding abuse prevention order, were confirming circumstances establishing, by a preponderance of the evidence, that the defendant had authored the text messages. See Purdy, supra at 447-448 ("Evidence may be authenticated by ... its appearance, contents, substance, internal patterns, or other distinctive characteristics" [quotation omitted] ). Accordingly, the judge acted within his discretion in admitting the text messages.

Judgments affirmed.


text:
    C.C. v. C.C.
    17-P-1068
    Appeals Court of Massachusetts.
    Entered: June 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, C.C. (mother), obtained an abuse prevention order, and a one-year extension thereof, under G. L. c. 209A against the defendant, C.C. (father). The parties have three children together, and divorce proceedings between them were ongoing at the time of the 209A application and hearings. The father appeals, arguing that, at the extension hearing, the judge erroneously excluded an affidavit proffered by his counsel and abused his discretion in issuing and extending the order. We affirm.

At the extension hearing, the mother testified that, four days before applying for the 209A order, she had a conversation with the father's sister-in-law in which the sister-in-law told her that, several months prior, the father, a licensed gun owner, had learned about an intimate videotape of the mother with another man. According to the sister-in-law, after finding out about the videotape, the father told his family members to "come get his guns because he was going to use them." The sister-in-law also informed the mother that the father had "recently" come back to get the guns.

At the hearing, the father sought to introduce an affidavit from the sister-in-law denying that the conversation with the mother took place. The judge excluded the affidavit over the father's objection because it would have been impossible for the mother to cross-examine the affiant, who was not present in court. Citing Frizado v. Frizado, 420 Mass. 592 (1995), the father argues on appeal that the judge erred by allowing the mother to introduce hearsay evidence but prohibiting him from introducing the affidavit of the sister-in-law.

Frizado holds that the rules of evidence need not be followed in abuse prevention order proceedings "provided that there is fairness in what evidence is admitted and relied on," id. at 598, and as long as the judge's evidentiary rulings leave each party a "meaningful opportunity to challenge the other's evidence." Id. at 598 n.5. To be sure, the judge allowed the mother to testify as to hearsay. And the affidavit of the sister-in-law was direct sworn testimony of the sister-in-law, but not hearsay. But we see nothing in Frizado that limits the authority of a judge to allow in only live testimony from witnesses who can be cross-examined. The judge did not preclude the father from cross-examining the mother on the alleged conversation with the sister-in-law nor did the judge prevent the father from testifying that the sister-in-law told him that the alleged conversation never took place. The judge did preclude the father from introducing statements of a witness who was not present to be cross-examined. The father has not met his burden of showing that decision was fundamentally unfair, or that it deprived the father of a meaningful opportunity to challenge the mother's evidence within the meaning of Frizado.

Next, the father argues that the judge abused his discretion in granting and extending the order. See Crenshaw v. Macklin, 430 Mass. 633, 636 (2000) (abuse prevention order extensions reviewed for abuse of discretion and errors of law). General Laws c. 209A permits individuals suffering from abuse to petition for an abuse prevention order, where "abuse" is defined as "(a ) attempting to cause or causing physical harm; (b ) placing another in fear of imminent serious physical harm; (c ) causing another to engage involuntarily in sexual relations by force, threat or duress." G. L. c. 209A, § 1, as appearing in St. 1990, c. 403, § 2. Here, the judge found that the father abused the mother in all three ways. In addition to the gun incident described supra, the mother testified to episodes that occurred between one and four years prior to the hearing in which the father had anal sex with her against her will, causing her to bleed throughout the evening; strangled her during oral sex and sexual intercourse; and forced her to have oral sex with him while he was carrying a gun in his holster. The judge was well within his discretion to credit the mother's testimony, and these acts clearly are instances of all three types of abuse.

The father responds that, whether these events occurred, there was insufficient evidence that the mother reasonably feared imminent serious physical harm which, he claims, is necessary to extend an order based on each kind of abuse. To begin with, there was sufficient evidence in the record that the conversation with the sister-in-law, which occurred four days before the mother applied for the 209A order, put the mother in reasonable fear of imminent serious physical harm. The judge could have credited the mother's testimony that she was scared that the father would use the guns, and that she did not immediately file the application because, at the time of her conversation with the sister-in-law, the children were staying at the father's house, and the mother did not want them to see the police serve him with the order. In addition, the judge appropriately considered the facts that the parties had children together and that the divorce proceedings between them were ongoing. See Iamele v. Asselin, 444 Mass. 734, 740 (2005) (judge should consider, among other things, "ongoing child custody or other litigation that engenders or is likely to engender hostility"). In these circumstances, the judge did not abuse his discretion in finding that the mother was in reasonable fear of imminent serious physical harm.

Next, the father is incorrect that a reasonable fear of imminent serious physical harm is necessary for abuse under c. 209A, § 1, pars. (a ) and (c ). See Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014) ("Although a person seeking an abuse prevention order [and extension] based on 'fear of imminent serious physical harm' must always show that he or she is currently in fear of imminent serious physical harm, and that such fear is reasonable, ... the same is not true of a person who seeks an order [or extension] based on having already been subject to physical harm"). That the mother was not in reasonable fear of imminent serious physical harm from the physical and sexual abuse due to that abuse's temporal distance is thus irrelevant to the judge's finding of abuse under paragraphs (a ) and (c ).

Temporal proximity to the abuse could be relevant to whether the mother is suffering from it, which she must be to obtain an abuse prevention order. G. L. c. 209A, § 3. It also could be relevant to whether there is a "continued need for the order." Callahan, supra. But our cases have made clear that abuse prevention orders may issue to protect a plaintiff from "the continuing impact of past violence," including where a plaintiff "reasonably remains in fear of the abuser." McIsaac v. Porter, 90 Mass. App. Ct. 730, 734 (2016). Indeed, we have upheld abuse prevention orders on this basis even when "there had been no contact between the parties in the past two years." Doe v. Keller, 57 Mass. App. Ct. 776, 779 (2003). Here, the mother testified that, six days before she filed her application, the father "walked into the home like he had never left and the abuse happens-happened with [the father] always behind a closed door so it scared me to just have him walk in brazenly into the house as if he never left." This testimony indicates that the mother continued to fear the father, and the judge did not abuse his discretion in concluding that this fear was reasonable and that there was a continued need for the order. The judge therefore did not err in finding abuse under paragraphs (a ) and (c ), issuing the order, or extending it.

Order extended on June 5, 2017, affirmed.


text:
    COMMONWEALTH v. Richard VITTUM.
    16-P-1664
    Appeals Court of Massachusetts.
    Entered: June 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury-waived trial in the Superior Court, the defendant was convicted of indecent assault and battery on a person with an intellectual disability. See G. L. c. 265, § 13F. On appeal, he argues that the indictment should have been dismissed under Mass.R.Crim.P. 13, as appearing in 442 Mass. 1516 (2004), and under Commonwealth v. McCarthy, 385 Mass. 160 (1982), because evidence presented to the grand jury did not amount to probable cause. He also claims that the Commonwealth's evidence was insufficient to support the conviction. We affirm.

1. Motion to dismiss. The defendant moved to dismiss the indictment before trial, arguing that the Commonwealth failed to present to the grand jury sufficient evidence that the victim, whom we shall call Kathy, (1) did not consent to the conduct with which he was charged, or (2) lacked the capacity to consent. Considering only whether "the grand jury [heard] sufficient evidence to establish the identity of the accused ... and probable cause to arrest him" for the crime charged, McCarthy, supra at 163, we conclude that the motion was properly denied.

The evidence presented to the grand jury established that Kathy has a diagnosis of mild to moderate cognitive impairment and Down Syndrome. She was living in a group home in Waltham on March 9, 2011, when the defendant, who was employed as a van driver, picked her up and drove her to a day program she regularly attended. The defendant knew Kathy and had transported her to the program on previous occasions. When the van stopped at a traffic light, the defendant put his hand down Kathy's shirt. Kathy began to shake, raised her hands, and shook her arms. The defendant then put his hand down between Kathy's legs. Kathy continued to shake and had a stunned expression on her face.

Kathy did not testify before the grand jury. The conduct described above was witnessed by Janet Bourgeois, who was driving to work and had stopped at the same traffic light in front of the defendant's van. Bourgeois was employed as a front end supervisor at a pharmacy. She recognized the defendant because he often came into the pharmacy to pick up prescriptions. She also recognized Kathy as a resident of the group home, but she did not know Kathy's name. Upon arriving at the pharmacy, Bourgeois reported her observations to her supervisor, who then called the main office of the group home. Kathy did not attend her program that day. Instead, she was brought to the hospital. Kathy had fresh marks on the left side of her chest and appeared upset and angry.

State police Sergeant Timothy Brown testified that he interviewed the defendant on the following day. The interview was both video and audio recorded, and a copy of the recording was introduced as a grand jury exhibit. Sergeant Brown testified that the defendant admitted driving Kathy on the morning of March 9, 2011, from the group home to her day program. The defendant also admitted that he was aware of Kathy's disability. More specifically, the defendant described Kathy as "retarded." Initially, the defendant told Sergeant Brown that he did not recall touching Kathy. Later, however, he admitted that Kathy had a hole in her sock and he stuck his finger into the hole. He further stated that he sometimes helps Kathy with her coat. Upon learning of the allegations against him, the defendant stated that Kathy was mistaken or lying, that she would repeat anything, and that she doesn't remember anything from one minute to the next. According to Sergeant Brown, the defendant also posed the rhetorical question, "why would I do that, she doesn't have any breasts."

The evidence provided the grand jury with ample probable cause to believe that Kathy did not consent to the defendant's conduct. It also was sufficient to establish probable cause to believe that Kathy lacked the capacity to consent and that the defendant was aware of her possible incapacity due to her disability. See Commonwealth v. Blache, 450 Mass. 583, 594 (2008) (Commonwealth may prove lack of consent with proof that victim lacked capacity to consent, but only when defendant's knowledge of such incapacity is shown).

2. Motion for a required finding of not guilty. The defendant contends that the evidence presented at trial was not sufficient to prove the element of lack of consent beyond a reasonable doubt. We disagree. Although Kathy did not testify, the jury properly could have inferred from the evidence, which mirrored that presented to the grand jury, that Kathy did not consent to the defendant's conduct and that she was incapable of giving consent. The Commonwealth presented additional evidence at trial regarding Kathy's developmental disability. That evidence established that Kathy, who was fifty-one years old at the time of the incident, had been living in supervised facilities since at least 1984. By 2011, Kathy's life skills had declined to the point where she needed twenty-four hour supervision and assistance with most daily activities. As a result of this decline, she was moved to the group home in Waltham, where staff assists her with dressing, hygiene, medical appointments, and the like. Kathy's residence is alarmed so as to prevent her from wandering, and she is not permitted to be in the community unsupervised. The Commonwealth also introduced a redacted version of the defendant's recorded interview, in which he acknowledges Kathy's disability.

Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), a rational trier of fact could conclude that Kathy did not consent, based on testimony describing her immediate reaction to the defendant touching her and her prolonged distress over the incident. And, based on the testimony regarding the level of care and supervision Kathy requires on a daily basis, the jury also reasonably could have inferred that Kathy's "physical or mental condition was so impaired [as a result of her disability] that she could not consent." Commonwealth v. Blache, supra at 596-597.

Judgment affirmed.

      Presumably, the grand jurors viewed the recording of the interview. We have been provided with a copy of the exhibit. Because Sergeant Brown's testimony regarding the contents of the interview is consistent with what appears on the recording, it suffices to rely on his testimony for purposes of determining whether the Commonwealth has met its burden.

      There was evidence that Kathy had undergone a mastectomy.

      Bourgeois testified that she saw the defendant touch Kathy and described Kathy's reaction. Other witnesses described Kathy's distress and the new injury to her chest.

      Contrary to the defendant's assertion, the Commonwealth was not required to present expert testimony to prove Kathy's incapacity to consent. The jury could have reasonably inferred incapacity based on evidence of Kathy's developmental limitations.


text:
    COMMONWEALTH v. Leonard WARD.
    17-P-313
    Appeals Court of Massachusetts.
    Entered: June 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the Superior Court, the defendant, Leonard Ward, was convicted of armed robbery; assault and battery by means of a dangerous weapon causing serious bodily injury; assault and battery by means of a dangerous weapon; and two counts of assault and battery. In this appeal he argues that the judge erred by denying his motion for a required finding of not guilty on the charges of armed robbery and by allowing refreshed memory testimony of a Commonwealth witness. We affirm.

1. Facts. We summarize the facts the jury could have found in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), reserving certain facts for our discussion of specific issues. On March 2, 2015, Anthony DeCosta made arrangements to buy $150 of the illegal drug, Molly, from Ephraim Hunter. DeCosta believed he had $600 or $650 with him when he went to buy the drugs from Hunter. Hunter agreed to meet DeCosta in an apartment complex parking lot in Millis. Hunter arrived at the predetermined location for the drug transaction accompanied by Ward and a third codefendant, Xavier Frederick in a van driven by Devin Connolly. Upon arrival at the parking lot, Ward and Frederick left the van and stood near a dumpster. Shortly thereafter, DeCosta arrived accompanied by two friends, Melissa Shultz and Christine Taylor. DeCosta left his friend's car and entered the van. Ward and Frederick then ran toward the van, opened the doors on both sides of the van and entered. All three defendants got on top of the victim and beat him. Taylor went over to the van to ask "what was going on" and made observations of DeCosta being attacked. Ward was seen punching DeCosta. Frederick was seen striking DeCosta in the head with a "shiny object." The object was shaped like a crowbar or hammer. Statements about stabbing the victim were heard coming from the van. The defendant was heard by Taylor to say "stab him, stab him, kill him, kill him." Connolly heard more than one of the defendants saying something like "where's the money" or "I can't find the money." DeCosta was able to escape from the van and was unconscious when the police arrived. When the police first observed DeCosta he was not wearing pants or shoes. A hammer, khaki pants, a black shoe and snow brushes were located in the van. At the time of his arrest, Hunter had $583 on his person.

2. Discussion. a. Sufficiency of the evidence. The defendant contends that the evidence was insufficient to prove he knowingly participated in the armed robbery or that he shared the requisite intent to steal money from DeCosta with the codefendants. We disagree.

To support a finding of guilt of armed robbery requires proof that the defendant (or an accomplice), while armed with a dangerous weapon, assaulted the victim and took money or property from the victim with the intent or shared intent to steal it. Commonwealth v. Williams, 475 Mass. 705, 710 (2016). We review the defendant's claim to determine whether the evidence, when viewed in the light most favorable to the Commonwealth, was "sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the [armed robbery], with the intent [to steal]." Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). See Commonwealth v. Latimore, 378 Mass. at 677. "The evidence need not be direct; circumstantial evidence and inferences drawn therefrom may be sufficient. Commonwealth v. Linton, 456 Mass. 534, 544 (2010), quoting from Commonwealth v. Lao, 443 Mass. 770, 773 (2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011). These inferences 'need only be reasonable and possible and need not be necessary or inescapable.' Linton, supra, quoting Lao, supra." Commonwealth v. Fernandes, 478 Mass. 725, 738-739 (2018).

Here, we are persuaded that the evidence was sufficient to support the conviction of armed robbery. The defendant's actions and statements provided evidence that he knowingly participated in the crime with the requisite intent.

When he arrived at the prearranged location, the defendant was aware that DeCosta was coming with money to purchase drugs. Frederick and the defendant left the van together and went beside a dumpster nearby. Once DeCosta arrived and entered the van, Frederick and the defendant ran into the van and all three defendants attacked DeCosta. Frederick was seen striking DeCosta with a shiny object. See Commonwealth v. Rakes, 478 Mass. 22, 33 (2017) (jury can infer that defendant knew his or her coventurer to be armed in cases where victim's resistance can reasonably be anticipated, as defendant is presumed to recognize need for means by which to overcome that resistance). Even if the defendant had been unaware that one of the other defendants intended to use a weapon in advance, it would be reasonable to conclude that he became aware of the use of a weapon over the course of the robbery and continued to participate. His knowledge of the weapon and continued participation are sufficient to implicate him in the joint venture. Commonwealth v. Williams, supra at 711. Further the statements heard by the witnesses during the robbery indicating the defendants were trying to locate the money as well as the statements by the defendant to stab and kill "him" provide additional support that Ward, Frederick, and Hunter consciously acted together in carrying out the armed robbery. See Commonwealth v. Sexton, 425 Mass. 146, 152 (1997).

b. Refreshed memory. The defendant contends that the judge abused his discretion when he allowed the Commonwealth over his objection to refresh Taylor's memory as to who she heard say, "stab him, stab him, kill him, kill him."

To establish that a judge abused his or her discretion in denying an objection to exclude testimony, a defendant must show that there was " 'a clear error of judgment in weighing' the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). During her direct testimony Taylor could not identify who had made the statement in question. On redirect examination Taylor admitted that she had been asked who had made this statement while testifying before the grand jury, that her memory was fresher when she testified before the grand jury, that her memory was presently exhausted as to which voice she could identify as making the statement and that reviewing her grand jury testimony would help refresh her recollection of who made the statement. After reviewing her grand jury testimony, Taylor identified the defendant as the one who said "stab him, stab him, kill him, kill him."

"A witness whose memory has been exhausted may have that memory refreshed in the presence of the jury by any means that permits the witness to testify from his or her own memory." Commonwealth v. Woodbine, 461 Mass. 720, 731 (2012). See Mass. G. Evid. § 612(a) (2017). In this case, we fail to discern any abuse of discretion by the judge.

Judgments affirmed.

      The assault and battery by means of a dangerous weapon guilty verdict was filed, as it was subsumed in the assault and battery by means of a dangerous weapon causing serious bodily injury.

      Molly is a form of ecstasy.

      Connolly was indicted for accessory after the fact to armed robbery. Connolly entered into a cooperation agreement with the Commonwealth that resulted in the dismissal of the charge in exchange for her testimony against the defendants.


text:
    COMMONWEALTH v. DUNG VAN TRAN.
    17-P-958
    Appeals Court of Massachusetts.
    Entered: June 26, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Suffolk County grand jury indicted the defendant on one count of arson of a dwelling, two counts of aggravated assault and battery by means of a dangerous weapon, one count of assault and battery by means of a dangerous weapon, four counts of armed assault with intent to murder, and two counts of attempted murder. The Commonwealth filed a nolle prosequi on two of the four counts of armed assault with intent to murder and the two counts of attempted murder. After a trial, a jury returned a guilty verdict on all remaining charges and the judge sentenced the defendant. The Supreme Judicial Court upheld the defendant's convictions on all but two of the charges, setting aside the defendant's two convictions of armed assault with intent to murder and remanding the case to the Superior Court for a new trial on those indictments. Commonwealth v. Dung Van Tran, 463 Mass. 8 (2012). On July 17, 2013, the Commonwealth filed a nolle prosequi on the two remanded charges after conferring with the victims' families, who requested not to be forced to endure a second trial on the matter. The defendant then filed a motion for new trial on March 2, 2017, which the Commonwealth opposed and a judge denied. The defendant appeals, alleging that the judge erred in denying his motion for new trial because the defendant was not afforded trial counsel at the entry of nolle prosequi. We affirm.

The defendant alleges that the prosecution's filing of a nolle prosequi was a critical stage at which the protections of the Sixth Amendment to the United States Constitution entitled him to counsel. See Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 510-511 (2011). He can point to no cases and we can find none that stands for this proposition. Critical stages occur when "the accused finds himself 'confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.' " Commonwealth v. Sargent, 449 Mass. 576, 580 (2007), quoting from United States v. Byers, 740 F.2d 1104, 1117-1118 (D.C. Cir. 1984). Alternatively, entering nolle prosequi for the defendant's charges, "[i]n effect, ... wipes out the charges pending against the defendant and precludes the State from prosecuting the defendant under the charging document that was nolle prossed." 4 LaFave, Israel, King, & Kerr, Criminal Procedure § 13.3(c), at 179 n.37 (4th ed. 2015). The defendant here was "not confronted by the procedural system; he [had] no decisions in the nature of legal strategy or tactics to make." Commonwealth v. Sargent, supra, quoting from United States v. Byers, supra at 1118. Accordingly, it was not error for the judge to deny the defendant's motion for new trial.

Order denying motion for new trial affirmed.

      A separate grand jury indicted the defendant on a charge of home invasion based on the same conduct as the listed indictments, and the indictments all were joined for trial.

      To the extent that the defendant's additional claims rise to the level of appellate argument, we find nothing in them that warrants further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. Peter HURLEY.
    17-P-952
    Appeals Court of Massachusetts.
    Entered: June 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Peter Hurley, appeals his convictions of operating under the influence (OUI), fifth offense, in violation of G. L. c. 90, § 24(1) ; resisting arrest, in violation of G. L. c. 268, § 32B ; and threats to commit a crime, in violation of G. L. c. 275, § 2. On appeal, the defendant contends that (1) he was prejudiced by not having access to potential exculpatory video recording (video) evidence, and (2) his jury waiver was ineffective as to the subsequent offense trial. We affirm the defendant's underlying convictions but vacate the subsequent offense conviction.

Background. The defendant was observed by a Peabody police officer driving without headlights, through a red light (twice), and over a curb. According to the Commonwealth, once the defendant was pulled over, he fell down, walked towards the woods, stumbled and fell, resisted being handcuffed and put in the cruiser, and verbally threatened the police officer while being transported to the police station. The officers formed the opinion that he was intoxicated. The Commonwealth sought to prove that, upon arrival at the police station garage, it took several officers to remove the defendant as he yelled, screamed, and kicked at them from the rear seat of the cruiser. Soon after the officers brought the defendant into the booking area, he tripped and fell, resulting in a bleeding gash over his right eye. The defendant continued to act belligerently and was ultimately placed in a cell; emergency medical technicians were called to treat his wound.

The defendant's theory of the case, as presented through cross-examination and argument, was that he was not intoxicated, belligerent, or combative, and that he did not receive the gash on his eye at the police station. He argued to the jury that the police had failed to preserve a booking video which would have shown the officers' testimony to be untrue.

Discussion. Missing video. Prior to trial, the defendant filed a motion for discovery requesting that the Commonwealth preserve the recordings from cameras in the booking area of the police station, which was allowed. The Commonwealth failed to preserve the footage. The defendant contends that he was prejudiced by the lost booking area videos because they would have shown that the defendant sustained his injuries prior to arriving at the police station, thus undercutting the credibility of the officers. He suggests that the missing footage would show whether the police officers "exaggerated in their assessment of the Defendant's conduct at the time of, and subsequent to his arrest, thereby calling the officers' credibility into question."

Depending on what the footage showed, the videos could have undermined the credibility of the testifying officers. The defendant explored the failure to preserve the evidence through the cross-examination of multiple witnesses. The defendant also emphasized the loss of the videos in his opening statement and closing argument to the jury. See Commonwealth v. Cameron, 25 Mass. App. Ct. 538, 549 (1988). Cf. Commonwealth v. Heath, 89 Mass. App. Ct. 328, 338 (2016). In a further remedial effort to abrogate any possible prejudice, the judge explicitly instructed the jurors on two occasions that (1) the video evidence had not been preserved through the fault of the Commonwealth and not the defendant, (2) that the defendant was contesting what happened in the police station, and (3) that the jury could consider the Commonwealth's failure to preserve the evidence in assessing the credibility of the witnesses' testimony. Although this case was tried before this court's decision in Commonwealth v. Heath, supra, the judge's instructions to the jury aligned with the Heath court's holding. See id. at 339-340. It is evident that the judge took the utmost care to conduct the trial in a way that would mitigate the possible prejudice caused by the missing booking video. See Commonwealth v. Kee, 449 Mass. 550, 557-558 (2007). The judge did not abuse his discretion.

Jury waiver. Immediately following the jury's guilty verdicts, a bench trial was conducted on the second and subsequent offense portion of the indictment. Before beginning, the judge engaged the defendant in an extensive jury waiver colloquy during which the defendant insisted that he did not want to be tried by the jury that had just convicted him, but wanted new juries to be empanelled for each of his four prior offenses. The judge explained to the defendant that he had decided to hold the existing jury, thus the defendant had two choices, continue with the existing jury or engage in a bench trial. The defendant insisted that he did not want to be tried by the existing jury, nor did he want to be tried by the judge. At a stalemate, the judge decided to proceed to a bench trial and dismissed the jury. The defendant then refused to sign the jury waiver form. The defendant was tried, jury waived, and found guilty as a subsequent offender.

The defendant contends that his conviction as a subsequent offender was invalid because he never signed a written waiver of his right to a jury trial. "Indeed, our case law has established a 'bright-line' rule under which a defendant's jury waiver is only effective when a signed written waiver is filed with the court." Commonwealth v. Johnson, 79 Mass. App. Ct. 903, 904 (2011), quoting from Commonwealth v. Osborne, 445 Mass. 776, 781 (2006). "[T]he requirement of a signed, written jury waiver is an important protection provided by the Legislature for the benefit of a criminal defendant." Id. at 780. Despite the defendant's insistence that he receive a new jury for every prior offense at issue, it is at the judge's discretion whether to empanel a new jury. Commonwealth v. Thompson, 427 Mass. 729, 736-738 (1998) ; G. L. c. 278, § 11A. If a judge decides to hold the jury for the second part of a bifurcated trial, the defendant's only other option is a jury-waived bench trial. Thompson, supra at 737-738.

Here, the defendant objected to both a trial by the existing jury and to a jury-waived trial. The judge would have been permitted to try the unwilling defendant before the held jury, but not to proceed with a bench trial. See Thompson, supra at 736-738. Once the jury were released, the only remaining option was to proceed with a new jury.

The judgments on the charges of operating under the influence of intoxicating liquor, resisting arrest, and threats to commit a crime are affirmed. The order dated September 16, 2016, denying the motion for postconviction relief is reversed. The finding of guilty of operating under the influence of intoxicating liquor, subsequent offense, is vacated.

So ordered.

Affirmed in part; reversed in part; and vacated in part.

      At trial, multiple witnesses testified that on the night of the defendant's arrest there had been at least two functioning cameras in the booking area of the police station.

      Prior to trial, the defendant filed multiple motions to dismiss due to the lost videos, which were denied. Two judges concluded that dismissal of the charges was not warranted and that the video evidence would only be relevant for a collateral issue-the credibility of the police officer witnesses. The defendant renewed his motion to dismiss at trial, which was also denied. The defendant does not contend on appeal that it was an abuse of discretion to deny his motions to dismiss, but maintains that he was prejudiced by not having access to the potential exculpatory evidence that the video tapes contained.

      There is no merit to the defendant's argument that he is entitled to be tried by a new jury, or four new juries, merely because the statute governing subsequent offense trials does not prohibit it. See G. L. c. 278, § 11A ("The court may, in its discretion, either hold the jury which returned the verdict of guilty of the crime, the trial of which was just completed, or it may order the impanelling of a new jury to try the issue of conviction of one or more prior offenses"). See also Commonwealth v. Thompson, 427 Mass. 729, 736-737 (1998) ("[The defendant] contends that the jury in this case could not possibly be impartial in the habitual criminal proceeding.... This argument is frivolous. ... Requiring the empanelling of a new jury in a case of this nature would entail that a new jury is required in virtually every habitual criminal proceeding. That is certainly not what the Legislature intended in enacting § 11A").

      The Commonwealth has acknowledged that the defendant is entitled to a new trial on the subsequent offense portion of the indictment, a conclusion which we also reach upon independent review.


text:
    Ryan JORDAN v. Kaye MULVEY.
    17-P-1259
    Appeals Court of Massachusetts.
    Entered: June 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Kaye Mulvey (the mother) appeals from an amended judgment, entered after an order of remand from this court that denied her request to remove the child to Minnesota. On appeal, the mother contends that the judge did not properly weigh all the factors identified in Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985), and abused her discretion when she found that it was not in the child's best interests to be removed to Minnesota. We affirm.

We review a judge's decision regarding the removal of a child for abuse of discretion or an error of law, accepting the judge's findings unless shown to be clearly erroneous. Id. at 709-710. A judge abuses her discretion where she "ma[kes] a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted).

Discussion. The mother contends that the judge abused her discretion by denying the mother's request to remove the child and by not properly weighing the five factors identified in Yannas, supra at 711. Under G. L. c. 208, § 30, as amended by St. 1986, c. 462, § 9, a minor child who is under the "suitable age to signify his consent" cannot be removed from Massachusetts "without the consent of both parents, unless the court upon cause shown otherwise orders." " 'Upon cause shown' means that removal is in the best interests of the child." Miller v. Miller, 478 Mass. 642, 647 (2018), citing Yannas, supra at 711.

A. Real advantage. "In determining whether cause for removal by the parent with primary physical custody has been shown under the statute, the judge must consider the custodial parent's request under the familiar two-prong 'real advantage' test set forth in Yannas, 395 Mass. at 710-712...." Murray v. Super, 87 Mass. App. Ct. 146, 149 (2015). "[T]he first consideration is whether there is a good reason for the move, a 'real advantage.' " Ibid. quoting from Yannas, supra at 711. "At this stage the judge must consider 'the soundness of the reason for moving, and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation.' " Miller, supra at 650, quoting from Yannas, supra at 711.

Here, the judge found, the record supports, and the father does not contest, that the mother had a sincere reason to remove the child to Minnesota, and that the request was not made to deprive the father of access to the child. Moreover, the judge concluded that a move to Minnesota would provide a real advantage to the mother as she would have financial and emotional support from her family. See Pizzino v. Miller, 67 Mass. App. Ct. 865, 870 (2006). Specifically, the judge found that the mother could live with her family and that she would be closer to her brother and sister and their families.

B. Best interests of the child. Once the judge has determined that the reasons for the proposed move are sincere, and that removal offers a "real advantage" to the custodial parent, the judge must then look at a number of factors "collectively" to determine whether removal is in "the best interests of the child." Yannas, supra at 711-712. We remanded this matter for a fuller consideration of all of the relevant Yannas factors in Jordan I. The mother maintains that the judge again failed to consider all of the factors and gave disproportionate weight to one factor-the impact on the father-child relationship.

The Yannas factors are: "(1) whether the quality of the [child's life] will be improved, including any improvement that 'may flow from an improvement in the quality of the custodial parent's life'; (2) any possible 'adverse effect of the elimination or curtailment of the child's association with the noncustodial parent'; (3) 'the extent to which moving or not moving will affect the [child's] emotional, physical, or developmental needs'; (4) the interests of both parents; and (5) the possibility of an alternative visitation schedule for the noncustodial parent." Murray v. Super, supra at 150, quoting from Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 447 (2006). None of the relevant factors are controlling on their own. Dickenson, supra.

Here, after remand, the judge made additional findings of fact that explicitly addressed all of the Yannas factors. First, it is true, as the mother argues, that "the best interests of a child are ... interwoven with the well-being of the custodial parent." Yannas, supra at 710. Although the judge found that the mother would have a "real advantage" from moving back to Minnesota, "a finding that the proposed move presents a real advantage to the physical custodian does not necessarily mean that the move is in the best interests of the child[ ]." Murray, supra at 153. The judge explicitly found that the mother's move to Minnesota would not result in her greater happiness; therefore greater happiness would not flow to the child.

To her great credit, the mother had maintained sobriety for three years. However, the judge found that the mother left Minnesota to move to Massachusetts because of "triggers," i.e., her network of friends and others in Minnesota that contributed to her struggles with alcohol. The judge also credited the father's testimony that the mother had a difficult relationship with her mother. The judge recognized that the mother has moved away from Minnesota twice before, and was not convinced that a return to Minnesota on this occasion would improve her well-being, and therefore that of the child.

Furthermore, the judge found that the mother did not present evidence other than a plan to return to school in Minnesota, and did not establish the existence of greater employment opportunities in Minnesota than the opportunities she has had in Massachusetts. See Cogswell, supra at 449.

The judge was able to listen to the mother's testimony and observe her demeanor while in court and concluded that "a move back to Minnesota [would not] result in the happiness which [the Mother sought]." See Custody of Eleanor, 414 Mass. 795, 800 (1993) ("It is within the judge's discretion to evaluate the credibility of witnesses and to make [her] findings of fact accordingly"). Therefore, it was not an abuse of discretion for the judge to find that the mother had a sincere reason to remove the child to Minnesota, yet conclude that the move would not result in the mother's happiness and thereby redound to the benefit of the child. See Cogswell, supra at 448-450 (where mother had sincere reason for wanting to move to California, but move was not in best interests of child); Murray, supra at 153.

The judge also considered the additional Yannas factors in reaching her conclusion. After hearing the testimony of the father's and mother's experts, the judge found that the move would seriously and negatively affect the child's relationship with his father and that curtailment of that relationship would have an adverse effect on the child's development. See Cogswell, supra at 450. The father has had significant parenting time with the child since his birth, and they have developed a strong attachment and bond. Due to the age of the child, the mother's expert testified that the father and child would need three to four days of in-person contact per month to maintain their relationship. The father's expert testified that the father and the child had a "secure attachment, which is so crucial for [the child's] current and future development," and that a curtailment of their bond could put the child at risk for depression, anxiety, and confusion. In addition, the father's expert testified that the use of "Skype" or "Facetime" would not suffice as a substitute for physical contact. In light of that testimony, the judge found that the mother's proposed visitation schedule was not realistic to maintain the bond between the father and the child. ,

In Jordan I, we remanded the matter for a more detailed explanation of the judge's application of the Yannas factors, including her findings based on the expert's testimony regarding the "possibility" that the child's moving could have "dire consequences." On remand, she made further findings on multiple factors, and in assessing the interests of the child, made explicit findings regarding the harm that she found the child "would" suffer, as distinguished from the child being put "at risk" of harm. Contrary to the mother's assertion, the judge in her remand decision did not place "disproportionate emphasis" on the effect of the proposed separation from the father in reaching her conclusion. Although this factor is not controlling, it is nevertheless relevant in the total consideration. See Woodside v. Woodside, 79 Mass. App. Ct. 713, 720 (2011).

The weight of the evidence is for the trial judge. See Custody of Eleanor, supra at 800. Balancing the factors that bear on the child's best interests in a removal case "involve[s] classic discretionary decision-making by the trial judge." Cogswell, supra at 452. The mother's contentions devolve essentially to an argument that the judge should have weighed the factors differently. After remand, the judge gave further consideration to all the Yannas factors and determined that removal to Minnesota was not in the child's best interest. That decision is supported by the record and the findings of fact. The judge did not abuse her discretion. See Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 774 (2006).

A final word is in order. Legal proceedings are a blunt instrument with which to calibrate the intricacies of human relationships. Nothing in this memorandum and order should be considered a criticism of the parents or their families or a referendum on the parenting skills of one or the other parent. The record reflects that the child has two loving parents and a welcoming extended family. The trial judge decided that a move to Minnesota would not provide enough of a benefit to the mother to improve the child's welfare, and that the child's best interests were best served by remaining in close proximity to both parents in Massachusetts. While one parent in any removal proceeding will always be disappointed in the decision of the court, both parents here have demonstrated a deep love of, and commitment to, this child. Our decision affirming the trial judge's order affirms the judge's recognition of the positive benefits of that commitment.

Amended judgment affirmed.

      See Jordan v. Mulvey, 91 Mass. App. Ct. 1102 (2017) (Jordan I ).

      The child was fourteen months old at the time of the trial.

      "The statute is intended to 'preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationships, while balancing those rights with the right of the custodial parent to seek a better life for himself or herself.' " Miller v. Miller, 478 Mass. 642, 647 (2018), quoting from Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 775 (2006).

      The mother denied that she had told the father that her friends or family were a trigger. The judge was permitted to credit the father's testimony. See Custody of Eleanor, 414 Mass. 795, 800 (1993), quoting from Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 407 (1937) ("[T]he judge who has heard the testimony and seen the witnesses face to face has a better opportunity for determining the credibility of their conflicting statements than can possibly arise from reading a record"). On appeal the mother contends that this testimony is too thin to support the judge's finding, but the mother did not provide any other explanation at trial for her previous alcohol use, and did not address what factors were triggers. The judge's findings were not clearly erroneous.

      The mother has held various jobs while living in Massachusetts-waitress, nanny, receptionist, daycare provider, and recruiter at a law firm.

      The mother testified that she "would be very happy to fly back here four times a year or whatever the [c]ourt found right" and that she would "try to make it as easy as possible on [the father] when he came to Minnesota."

      The judge stated, "This decision is not about the father and the fact that his visitation with his [child] will be disrupted; it is about this particular young child and the effects that the proposed move would have on him."