text:
    ADOPTION OF ILSA.
    17-P-1005
    Appeals Court of Massachusetts.
    Entered: March 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   After a trial, a judge of the Juvenile Court found the mother unfit to parent the child, terminated the mother's parental rights, and approved the adoption plan of the Department of Children and Families (DCF). The mother appeals, arguing that (1) the judge's determination of unfitness is not supported by clear and convincing evidence and that (2) the judge abused his discretion in not ordering more than four posttermination/postadoption visits per year. We affirm.

Background. We summarize the relevant facts and procedural history from the judge's findings, reserving some details for discussion of the issues. The child was born in 2014, to the mother and the father. DCF became involved with the child in August, 2014, following reports made pursuant to G. L. c. 119, § 51A (51A reports), alleging heroin use by the parents in the child's presence. The 51A reports were supported after investigation by DCF. At trial, the mother testified that she was snorting heroin in August, 2014, and had been using it since June, 2014, including while caring for the child. She also admitted to abusing the prescription medication Percocet from 2010 to 2014.

On November 4, 2014, the mother overdosed on heroin while caring for the child, who was just shy of seven months of age. Emergency workers revived the mother and transported her to the hospital with the child. DCF took emergency custody and commenced this proceeding.

While in DCF custody, the child resided with her preadoptive parents except for a brief period between May 8, 2015, and June 27, 2015, during which time DCF perceived the mother to be in general compliance with her service plan and returned the child to the mother's care. On June 27, 2015, the mother struck the father several times while he was holding the child, who was then fifteen months old. Following this incident, DCF again placed the child in the care of her preadoptive parents.

Subsequently, the father returned to living with the mother, having left his sober house. The father reported and the mother testified that they used drugs together in July, 2015. On August 21, 2015, police were called to the mother's home to remove the father after she reported that he had choked and punched her. On August 24, 2015, the mother obtained a restraining order against the father, which was extended after a hearing to September 2, 2016. The judge did not find credible the mother's contention that from July, 2015, to October, 2015, she only used heroin three times. At the end of October, 2015, the mother commenced treatment with a methadone clinic.

In February, 2016, while the restraining order was still in effect, an argument between the mother and the father devolved into the father breaking down the mother's apartment door. After this incident the mother disclosed to DCF that the father had been essentially living with her continuously since May, 2015, contrary to her previous denials of that fact. The mother vacated the restraining order against the father in March, 2016. During February, 2016, through April, 2016, the mother relapsed on opiates and cocaine while the father was living with her. Approximately two months prior to trial the father again broke down the mother's apartment door. On the first day of trial in December, 2016, the mother represented that the father would be moving out on January 1, 2017. He did not and continued to live with her until the trial concluded on January 11, 2017. At the time of trial, the child was approximately two years, eight months of age and had been in DCF custody since about seven months of age (with the exception of the period from May 8, 2015, to June 27, 2015, when as described above the child was returned to the mother's custody).

Discussion. 1. Termination of parental rights. a. Clear and convincing evidence. The mother argues that the judge's finding of her unfitness was not supported by clear and convincing evidence. In determining whether to terminate a parent's rights, a judge must evaluate whether there is clear and convincing evidence that the parent is unfit and, if found to be unfit, whether terminating the legal relationship between parent and child would serve the child's best interests. See Adoption of Nancy, 443 Mass. 512, 514 (2005). To determine whether termination of parental rights best serves the child's interests, "the court shall consider the ability, capacity, and readiness of the child's parents ... to assume parental responsibility." Adoption of Elena, 446 Mass. 24, 31 (2006), quoting from G. L. c. 210, § 3(c ). In reviewing a judge's decision to terminate parental rights, we give the judge's decision substantial deference "and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011). There is an abuse of discretion where "the judge made 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). "[T]he 'judge's assessment of the weight of the evidence and the credibility of the witnesses is entitled to deference.' " Petition of the Dept. of Social Servs. to Dispense with Consent to Adoption, 397 Mass. 659, 670 (1986), quoting from Custody of Two Minors, 396 Mass. 610, 618 (1986).

The mother contends that the evidence is not clear and convincing because she cooperated with DCF and complied substantially with her service plans. The mother is to be lauded for the positive steps she has taken to improve her situation. Nonetheless, the judge properly considered the required factors set forth in G. L. c. 210, § 3(c ), and concluded that factors ii, iii, v, vi, viii, and xii were applicable to his determination that the mother is unfit.

The judge found that the mother had failed to remediate her grievous shortcomings, which were demonstrated by her failure to fully address her substance abuse and her inability to remedy the negative effects of domestic violence. Contrary to the mother's argument, the mother failed to comply with service plans provided by DCF throughout the tenure of this case, which included abstaining from illegal substances and drug abuse as well as living separately from the father. The mother acknowledged that her service plans required that the father not live with her, and she testified that she understood the possible negative impact of their relationship on the possibility of her reunification with the child. Nevertheless, despite multiple incidents of domestic violence, the father lived with her for extended periods of time on and off throughout this case and was living with her at the time of trial. Furthermore, the mother had multiple periods of drug use relapse despite her engagement with counseling resources. Based on this record, we cannot conclude that the judge's findings are clearly erroneous.

The mother also challenges five findings of fact, out of ninety-four, underlying the judge's determination of unfitness. We have examined the record and we discern no error sufficient to warrant disturbing the judge's findings.

b. The reasonable efforts of DCF. The mother argues that DCF failed to meaningfully provide her with adequate services. "Before seeking to terminate parental rights, [DCF] must make reasonable efforts aimed at restoring the child to the care of the natural parents. This duty includes a requirement that [DCF] provide services that accommodate the special needs of a parent." Adoption of Uday, 91 Mass. App. Ct. 51, 53 (2017), quoting from Adoption of Ilona, supra at 60-61. "[H]eroic or extraordinary measures, however desirable they may at least abstractly be, are not required." Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). A judge's determination that DCF made reasonable efforts is not reversed unless clearly erroneous. See Adoption of Ilona, supra at 61-62.

Here, the judge was "satisfied that DCF met its regulatory obligations in providing services," found that DCF "continued to offer services and develop service plans" even after the goal changed from reunification to adoption, and further found that the mother sought services on her own, beyond those required in her service plans. The judge found that the mother failed to benefit from these services, in part due to her secrecy and lack of candor, to the detriment of her ability to care for the child. There is no evidence that the provided services were unsuitable or that even if DCF had offered other services, a difference would have been made. The judge found that the mother continued to face the same issues, not due to any alleged failures of DCF, but because of her lack of forthrightness and follow-through. "The [parent's] failure cannot be laid at [DCF's] door." Adoption of Gregory, 434 Mass. 117, 123 (2001).

Based on the record, we cannot conclude that these findings are clearly erroneous and find that the judge's determination is supported by clear and convincing evidence. See Adoption of Ilona, supra. We discern no abuse of discretion in the judge's conclusion that termination of the mother's parental rights is in the child's best interests.

2. Posttermination and postadoption visitation. The mother argues that the judge abused his discretion in ordering only a minimum of four visits per year. Once a parent is established as unfit, the decision whether to grant postadoption visits is left to the trial judge's discretion. See Adoption of John, 53 Mass. App. Ct. 431, 439 (2001). The decision should be based on the best interests of the child. See Adoption of Ilona, supra at 63. Where a preadoptive family has been identified, as here, "a judge must balance the benefit to the child ... with the intrusion that an order imposes on the rights of the adoptive parents."Id. at 64.

Here, the judge found that there was a bond between the mother and the child but also found that the child was very comfortable in her preadoptive placement, which is essentially the only home she has known. We see no abuse of discretion in setting a minimum of four yearly visits.

Decree affirmed.

      The father's rights also were terminated. He has not appealed.

      We pause to note that the mother has shown affection for the child, and none of the judge's findings negate this. Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment or a determination that the mother does not love the child. The inquiry instead was whether the parent's deficiencies or limitations "place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child." Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).


source: Caselaw Access Project

license: Public Domain

text:
    Richard G. BARRY v. WELLS FARGO BANK, N.A., & another (and a companion case ).
    17-P-587 17-P-936
    Appeals Court of Massachusetts.
    Entered: March 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Wells Fargo Bank, N.A., as trustee for Securitized Trust Soundview Home Loan Trust 2007-OPT5.

      The companion case is between the same parties.

   The first of these two appeals arises from a Land Court judgment after a judge allowed the defendants' motion for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). The plaintiff, Richard G. Barry, argues on appeal that the judge erred in allowing the defendants' motion for judgment on the pleadings because Wells Fargo Bank, N.A., lacked standing to foreclose on his property. The second appeal arises from a decision of a single justice of this court vacating the Land Court judge's order allowing the plaintiff's motion for a stay pending appeal. We conclude that there is no merit to either appeal. See Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 571 (2012) (mortgagee has standing to foreclose when mortgagee holds mortgage and also either holds underlying note or is acting on behalf of note holder). Here, Wells Fargo Bank, N.A., held both the mortgage and the note at the time of the notice of sale. We, thus, affirm the judgment of the Land Court and vacate the stay.

Judgment affirmed.

Stay pending appeal vacated.

      The judge simultaneously granted the plaintiff leave to amend his complaint within fourteen days. He failed to do so.

      The plaintiff appealed the single justice's order to a single justice of the Supreme Judicial Court. The single justice of the Supreme Judicial Court stayed this court's single justice order and directed the plaintiff to file an appeal to a panel of this court.


text:
    L.D. v. C.H.
    17-P-626
    Appeals Court of Massachusetts.
    Entered: March 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, C.H., appeals from an order denying his renewed motion for reconsideration or, in the alternative, termination of a permanent G. L. c. 209A order (permanent 209A order) issued against him. He argues that: (1) he did not have adequate notice of the extension hearing; (2) the evidence was insufficient to support the issuance of a permanent 209A order; (3) he was denied an evidentiary hearing; and (4) the absence of the plaintiff's current home and work address on the permanent 209A order violates his due process rights. We affirm.

Background. The plaintiff, L.D., is the former girl friend of the defendant. On March 1, 2013, she filed a complaint for protection from abuse pursuant to G. L. c. 209A. An abuse prevention order pursuant to c. 209A (209A order) was issued with the defendant present, as he was being arraigned at the same time on criminal charges resulting from the incident that gave rise to the 209A order. The defendant was served in hand with the 209A order, which included a next hearing date of March 3, 2014, at 9:00 A.M. On March 3, 2014, the defendant failed to appear and, after a hearing at which the plaintiff testified, albeit briefly, the 209A order was extended permanently.

In April, 2014, the defendant filed a motion to vacate the permanent 209A order. After a hearing on June 10, 2014, the motion was denied. At the conclusion of the hearing the judge stated, "And Counsel, if it helps at all, I would entertain a motion to modify from permanent to one year." The defendant then filed a motion for reconsideration or, in the alternative, modification of the permanent 209A order to a one-year order. Hearing on the motion was continued multiple times for various reasons, including the plaintiff's failure to appear at numerous court dates and successive withdrawals of her attorneys. In May, 2015, the defendant was acquitted of the criminal charges that gave rise to the permanent 209A order.

In November, 2015, the defendant filed a renewed motion for reconsideration or, in the alternative, termination of the permanent 209A order (renewed motion). A hearing on the defendant's renewed motion was held on August 24, 2016, before a second judge. Although witnesses were sworn, no one testified. At the end of the hearing, the second judge modified the permanent 209A order by "impound[ing]" the plaintiff's residence and workplace addresses. The second judge subsequently denied the renewed motion.

Discussion. 1. Notice of the extension hearing. The defendant contends that he did not receive adequate notice that the extension hearing regarding the 209A order was to be held on March 3, 2014. Specifically, he argues that placement of the hearing date on the second page of the 209A order was in contravention of the requirement set forth in G. L. c. 209A, § 3(i ), inserted by St. 1999, c. 403, § 3, that "[e]very order on its face ... shall include the date and time that the matter will again be heard." We are unpersuaded.

A 209A order "must provide the defendant with reasonable notice and an opportunity to be heard." Caplan v. Donovan, 450 Mass. 463, 470 (2008). Here, the 209A order was issued in open court, with the defendant present. He was served in hand with the 209A order, which included the date (and time) of the next hearing. It put the defendant on notice that an extended or permanent order may be issued against him. See Commonwealth v. Delaney, 425 Mass. 587, 591-592 (1997).

2. Sufficiency of the evidence to support the permanent 209A order. The defendant next claims that the evidence presented at the extension hearing was insufficient to support a permanent 209A order. The defendant failed to file a timely notice of appeal from the underlying permanent 209A order. See Wotan v. Kegan, 428 Mass. 1003, 1003 n.2 (1998) ("[T]he appropriate avenue for review of c. 209A orders now is the filing of an appeal in the Appeals Court"); MacDonald v. Caruso, 467 Mass. 382, 388 (2014) ("A defendant's motion to terminate an order is not a motion to reconsider the entry of a final order, and does not provide an opportunity for a defendant to challenge the underlying basis for the order or to obtain relief from errors correctable on appeal"). The plaintiff's testimony at the extension hearing was sufficient to justify the continuation of the 209A order. See Frizado v. Frizado, 420 Mass. 592, 596 (1995). Contrast Banna v. Banna, 78 Mass. App. Ct. 34, 36 (2010) (evidence insufficient to extend 209A order where judge only asked plaintiff if she wanted order extended).

3. Denial of evidentiary hearing. The defendant next contends that it was error to deny his renewed motion absent an evidentiary hearing. When a defendant moves to terminate a permanent order, the defendant must show by clear and convincing evidence that there was a "significant change in circumstances," and that the plaintiff "would no longer reasonably fear imminent serious physical harm from the defendant." MacDonald v. Caruso, supra at 390-391. A judge has discretion to determine whether, under the totality of circumstances, the defendant has met his burden. Id. at 391. See Frizado v. Frizado, supra at 597. Here, the judge did not abuse her discretion in denying the renewed motion. The judge had before her the defendant's memorandum in support of his renewed motion, which included, among other things, that the defendant had been acquitted in the criminal case, as well as supporting affidavits. As the burden of proof in a criminal trial is far more stringent than that in a 209A extension hearing, this argument must fail. See MacDonald v. Caruso, supra at 390. The judge did not abuse her discretion.

4. Absence of the plaintiff's current home and work addresses on the permanent 209A order. Lastly, the defendant argues that the permanent 209A order violates his due process right to notice of proscribed conduct because it does not include the plaintiff's current home and work addresses. This argument is without merit as there is a "longstanding common-law principle ... that the Legislature did not intend to make accidents and mistakes crimes." Commonwealth v. Finase, 435 Mass. 310, 315 (2001) (quotation omitted). Indeed, inadvertent contact between the parties of a 209A order does not amount to a violation of the order. In addition, G. L. c. 209A, § 8, provides for confidentiality of all case records, including the plaintiff's residential and workplace addresses when the plaintiff specifically requests that this information be withheld from the order.

Order denying renewed motion for reconsideration or, in the alternative, termination of the permanent restraining order affirmed.

      The 209A order prohibited the defendant from abusing or contacting the plaintiff and required that he remain at least 100 yards away from the plaintiff, that he stay away from the plaintiff's residence and workplace (listing addresses for both), and that he surrender to the police all guns, ammunition, and firearm identification cards.

      The second judge had presided over the defendant's criminal trial.

      Other arguments raised by the defendant, "but not discussed in this [memorandum and order], have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. Israel A. MATHEWS.
    16-P-1319
    Appeals Court of Massachusetts.
    Entered: March 21, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

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

   After a jury trial, the defendant was convicted of violating an abuse prevention order. The issue on appeal is whether the trial judge erred in denying the defendant's motion for a required finding of not guilty. We affirm.

Background. We summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Cordle, 404 Mass. 733, 734 (1989). The defendant stipulated at trial that he had notice of the abuse prevention order in effect on the date of the offense. The order required the defendant to stay away from the loft and studio property where the victim lived and worked (the property). On or about November 13, 2013, the manager of the property created a posting with photographs of the defendant identifying him as someone not allowed within 100 yards of the property and advising anyone who saw the defendant to call 911. The property manager distributed this posting via an electronic mail message (e-mail) to residents and hung the posting in the loft's main entry, laundry room, and rear entry. A witness who resided at the property testified that he received this e-mail and saw the poster every day when he arrived home.

Three days later, on November 16, 2013, the witness was in the property's parking lot when a dark colored sedan caught his attention by driving through the parking lot in a direction opposite to that in which people generally drove. The vehicle was well lit by sunlight, had the driver's side window down, and drove in the witness's direction at a walking pace, allowing the witness to see the driver for approximately ten to fifteen seconds from a distance of approximately fifteen feet. The driver of the vehicle locked eyes with the witness. The witness described the driver as dark complexioned, wearing a dark top and a backwards dark blue or black baseball cap with a white insignia. The witness recognized the driver's face from the poster and called the police.

Minutes after receiving the call, Officer David Couture met the witness and obtained the driver's description. Meanwhile, Officer Robert Rayne was patrolling a street within one mile of the property when he noticed two males fighting and intervened. The defendant was one of the men fighting. Rayne broadcasted that he had encountered the defendant and Couture responded to the location. Couture noticed that the defendant's clothing matched the witness's description of the driver, and arrested the defendant for violating the restraining order.

The defendant does not dispute that he is the person in the photographs on the poster. A copy of the poster with redactions was admitted into evidence, and the witness identified a particular photograph on the poster as depicting the driver. The witness was not asked to directly identify the defendant at trial as the person he saw driving the car on the property on the day in question.

Discussion. The defendant argues that the evidence presented at trial is insufficient to establish beyond a reasonable doubt that he was the driver of the vehicle at the property. "The standard which we apply in reviewing the propriety of the denial of a motion for a required finding of not guilty is whether the evidence, read in a light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt." Commonwealth v. Amado, 387 Mass. 179, 186 (1982) (quotation omitted).

The evidence recounted above was sufficient to allow the question of the defendant's guilt or innocence to go to the jury. "There was no evidentiary gap in the Commonwealth's case, merely a question of the weight to be accorded" to the evidence. Commonwealth v. Russell, 46 Mass. App. Ct. 307, 311 (1999). While the defendant notes variations in some details of the witness's description of the driver's clothing and the officers' descriptions of the defendant's clothing, and argues that there was no evidence that he owned or possessed car keys or a vehicle, it was for the fact finder to resolve possible conflicting inferences. See id. at 309. Additionally, the judge properly instructed the jury on witness identification and included instructions for honest mistake and cross-racial identification, which speak to the evidence's weight. See Commonwealth v. Bastaldo, 472 Mass. 16, 23 (2015) ; Commonwealth v. Wen Chao Ye, 52 Mass. App. Ct. 850, 857 (2001).

Judgment affirmed.

Order denying motion for new trial affirmed.

      The defendant's appeal from the order denying his motion for a new trial is also before us in this consolidated appeal, but as he pursues no argument on this subject, we affirm the order without further discussion.


text:
    Nikolaos J. PATERAKIS v. Andrew C. NAJDA & another.
    16-P-1068
    Appeals Court of Massachusetts.
    Entered: March 21, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Charles E. Najda.

   The defendants, Charles Najda and Andrew Najda (the Najdas), appeal from a judgment entered on a jury verdict that found them liable to the plaintiff for breach of contract, breach of fiduciary duty, and negligent misrepresentation. The Najdas also appeal from the denial of their motion for judgment notwithstanding the verdict. We affirm.

Viewing the evidence in the light most favorable to the plaintiff, the jury could have found the following. Nikolaos Paterakis heard about the Najdas through a mutual acquaintance, Rosa Nader, after he told Nader that he was interested in finding new business opportunities. The Najdas proposed that they form a hedge fund management company, and wooed Paterakis by showing him the expensive house in Concord in which they resided, and by representing that Charles Najda had developed an effective financial trading algorithm. The Najdas, however, never intended to run a legitimate business, planning instead to live a lavish lifestyle fueled by Paterakis's investment. The algorithm also did not work as well as was claimed. After negotiations, the parties signed a "Formation Agreement." Paterakis agreed to invest $500,000 in the business, with $150,000 to be used for salaries, $50,000 for expenses, and $300,000 for trading, in order to develop a track record utilizing the trading algorithm. The parties also executed a "Business Plan," which provided further details, and organized their business, Monument Street Capital Management LLC (MSCM), which they registered in Anguilla. Paterakis invested his $500,000 on October 7, 2010.

MSCM was not successful. Its book of accounts shows that, between December of 2010 and March of 2012, it had total inflows of slightly under $550,000-which includes Paterakis's $500,000 investment-and expenditures of around $620,000. These expenditures were for a combination of salary payments to Andrew Najda and "firm expenses." By the time the present action was filed a year after Paterakis's initial investment, MSCM's bank balance was around $23,000. Under Paterakis's theory, this rapid decline in MSCM's value resulted from the Najdas' wrongful use of corporate assets for their personal benefit, which they had intended to do from the beginning.

Discussion. We address each of the Najdas' arguments in turn.

Their strongest argument, which ultimately fails, is that the breach of fiduciary duty claim was incorrectly brought as a direct action when it should have been brought derivatively. In this case, Paterakis's breach of fiduciary duty claim is essentially that the Najdas wrongfully diverted MSCM's funds for their personal use. Under standard corporate law principles, claims that managers harmed the corporation must be brought derivatively. See Schaeffer v. Cohen, Rosenthal, Price, Mirkin, Jennings & Berg, P.C., 405 Mass. 506, 513 (1989). Breach of fiduciary claims may be brought in a direct action only if "[i]t would be difficult for the plaintiff ... to establish breach of fiduciary duty owed to the corporation." Bessette v. Bessette, 385 Mass. 806, 809 (1982), quoting from Donahue v. Rodd Electrotype Co., 367 Mass. 578, 589 n.14 (1975). Here, Paterakis would have had no trouble establishing that the Najdas, if they wrongfully took almost all of MSCM's assets for their own personal use, breached a fiduciary duty owed to MSCM.

Assuming without deciding that the same principles apply with equal force to this closely-held limited liability company in which there are only three members-two of whom were the managers of the company and are the defendants-and that therefore the breach of fiduciary duty claim should have been brought derivatively, the Najdas have shown no prejudice from the error. The jury were instructed that, if Paterakis were to prevail on his breach of fiduciary duty claim, his recovery would be equal to "his proportionate share of the moneys [that] ... the party against whom the claim is brought diverted to himself or others improperly." In other words, the judge instructed the jury to divide by three any amount they found the Najdas wrongfully took, each party being a one-third owner of MSCM, and distribute that one-third to Paterakis. The Najdas argue that if this had been brought as a derivative claim, damages (presumably three times the amount of the $77,000 which was awarded to Paterakis on this claim) would go to MSCM, the assets of which could only be distributed pro rata to members upon dissolution after first paying creditors. But, because the method of calculating damages used by the jury instructions leaves the Najdas with at least the same amount of money that they would have had under a derivative action, they can claim no prejudice.

Contrary to the Najdas' argument, the breach of contract claim was properly brought directly because the contract was between the parties as individuals and antedated the creation of MSCM. See Tracy v. Curtis, 10 Mass. App. Ct. 10, 25 (1980) (shareholders may bring direct claims against managers in their individual capacities when claims do not derive from corporate relationship and damages are sought against managers in their individual capacities).

The Najdas next claim that there was insufficient evidence to establish damages. This claim is not meritorious. If the Najdas wrongfully took MSCM's funds for their own use, it is immaterial whether MSCM grew in value. Thus, it was not necessary to determine the final value of MSCM in order to award damages. Even if it were, there is evidence that, when the action was filed, MSCM had cash on hand of about $23,000, which gave the jury some sense of its value.

The Najdas also argue that there was no breach of contract or fiduciary duty before MSCM was formed. As there was no requirement that these breaches occur before the formation of the company, and the jury were not instructed that there was any such requirement, this claim is without merit.

Next, the Najdas argue that the damages awards were duplicative. The jury awarded damages as follows: $116,000 for breach of contract, $50,000 for negligent misrepresentations, and $77,000 for breach of fiduciary duty. A court must uphold a damages award against a challenge of duplication "if, by any line of reasoning, the jury might have made a correct assessment of damages." Simon v. Solomon, 385 Mass. 91, 107 (1982). The $116,000 breach of contract damages, as the Najdas contend, could have represented Paterakis's one-third share of his investment into the trading account, plus what was earned on it. Although it is possible that the $50,000 negligent misrepresentation award included part of this amount, this inference is not "inescapabl[e]," id. at 108, particularly in light of the $77,000 in breach of fiduciary duty damages, and in light of the Formation Agreement's specific allocation of $50,000 to nonsalary expenses. In addition, since the jury could have made a total award of over $300,000, we cannot conclude that the substantially smaller overall award "inescapably" resulted from the duplication of damages.

The Najdas next argue that there was insufficient evidence of negligent misrepresentation. We disagree. To the extent they argue that one cannot negligently misrepresent a present intention of future conduct, the law is (as the Najdas acknowledge) to the contrary. See Cumis Ins. Soc., Inc. v. B.J.'s Wholesale Club, Inc., 455 Mass. 458, 474 (2009). In any event, the jury need not have relied on any statements made by the defendants about future conduct. The jury could have relied upon statements that the Najdas would abide by the Formation Agreement and the Business Plan, or that the trading algorithm had been tested and was working well. There was evidence that Paterakis's reliance on those statements was reasonable.

The Najdas further argue that the jury should have been instructed to supply two purportedly missing terms from the Formation Agreement: (1) how long the $200,000 allocated for expenses was supposed to last, and (2) who had the authority to allocate MSCM's resources for its operating needs. See President & Fellows of Harvard College v. Peco Energy Co., 57 Mass. App. Ct. 888, 896 (2003) (when essential term is missing, court must supply one that is reasonable in the circumstances). The first missing term is not an essential term for purposes of this case because, so long as the funds in the trading account were not supposed to be used for salaries and expenses, it is immaterial how long the $200,000 expense account was supposed to last. As to the second missing term, it is clear that the managers-that is, the Najdas-had the authority to allocate resources for MSCM's operating needs. The jury verdict indicates that they did not do so lawfully.

Even assuming that the Najdas' next argument is preserved-that the agreement creating MSCM superseded the Formation Agreement with respect to the managers' powers-it is without merit. Whatever the powers of the managers were under the MSCM agreement, the Najdas were nevertheless bound to comply with the terms of the earlier contract, the Formation Agreement.

The claim that the jury should not have been told that the plaintiff lost all his money was not preserved in the motion for judgment notwithstanding the verdict. In any event, in the instruction to which the Najdas point, the judge was simply describing to the jury what the plaintiff alleged, not instructing the jury that it was true.

The Najdas further argue that repeated testimony concerning their house in Concord should not have been allowed on grounds that its probative value was substantially outweighed by undue prejudice. Even assuming that this issue was preserved for our review, there was no error. It is undisputed that the Najdas operated the business from the Concord house; the plaintiff was thus entitled to elicit evidence as to its value, its furnishings, and as to expenditures made by the Najdas on the house during the period of the plaintiff's involvement with the business. In any event, the Najdas objected at trial only once to any of this testimony. That single mention of the house was not unduly prejudicial.

Finally, the Najdas argue that they were unable to put on a proper defense because they were diverted by what they describe as "misconduct": the plaintiff claiming that the trading account investment was not an investment in the company, that Andrew Najda's wife had an operational role with MSCM and made representations to the plaintiff, and that MSCM was never properly formed. However, the Najdas point to no evidence that supports their characterization of these acts as misconduct, nor do they point to any evidence that these assertions diverted their attention from actually defending the case.

Judgment affirmed.

Order denying motion for judgment notwithstanding the verdict affirmed.

      The jury found Andrew Najda and Charles Najda separately liable on the negligent misrepresentation and breach of fiduciary duty claims, i.e., each was liable for $25,000 on the negligent misrepresentation claim and for $38,500 on the breach of fiduciary duty claim. After the verdicts were rendered, the jury were polled and stated that their intention was to make separate awards in those amounts.

      The related claim that the jury should have been instructed that they could not award duplicative damages falls with the substantive claim on duplicative damages. Even if not giving the instruction were a preserved claim of error, it was prejudicial only if the jury nonetheless did award such damages.

      For the same reason, to the extent the Najdas claim that there cannot be a negligent misrepresentation about a company that does not exist, and to the extent that claim is preserved, even assuming there is some such rule, something we need not address, it is without merit.

      To the extent they are not addressed in our decision, we decline to consider the following arguments because they were not properly preserved below or are raised for the first time on appeal: that the plaintiff repackaged a contract claim as a tort claim; that, under the agreement that formed MSCM, there was no liability for breach of fiduciary duty; that the finding of liability and judgment for breach of fiduciary duty should be vacated because the managers had a legitimate business purpose; that Anguillan law should have been applied under the internal affairs doctrine; that the judge erred in instructing the jury that the Formation Agreement was the operative agreement; and that it was integrated.


text:
    COMMONWEALTH v. Jose ORTIZ.
    17-P-198
    Appeals Court of Massachusetts.
    Entered: March 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Jose Ortiz, appeals from the Superior Court's denial of his motion to withdraw his guilty pleas based on his counsel's failure adequately to inform him of the pleas' immigration consequences. We vacate the order denying the defendant's motion to withdraw his guilty pleas (motion for new trial) and remand the case for further proceedings.

Background. Ortiz is a citizen of the Dominican Republic and a lawful permanent resident of the United States. He has lived in this country since the age of three. All of his family, including a young son, are in the United States. In January, 2012, he was convicted after trial of trafficking in cocaine over 200 grams, G. L. c. 94C, § 32E(b )(4), and trafficking in heroin in over fourteen grams, G. L. c. 94C, § 32E(c )(1). He was sentenced to fifteen years on the first count and five on the second, to be served concurrently. He has no other criminal convictions that would have allowed for his deportation.

The convictions were vacated in 2014 due to Annie Dookhan's involvement as a confirmatory chemist in the case. See Commonwealth v. Scott, 467 Mass. 344, 349-350 (2014) (describing Dookhan's misconduct). At that time, Ortiz had served between four and five years of his sentence.

After the convictions were vacated, the Commonwealth expressed an intent to reprosecute. In 2015, following a colloquy, Ortiz pleaded guilty to possession with intent to distribute a class A substance, G. L. c. 94C, § 32(a ) and possession with intent to distribute a class B substance, G. L. c. 94C, § 32A(a ), and was sentenced to three years' probation with no credit for time served. Based on his pleas, he was taken into custody by Immigration and Customs Enforcement officers and placed in removal proceedings. These proceedings were virtually certain to result in Ortiz's removal. See 8 U.S.C. § 1227(a)(2)(B)(i) (aliens who violate controlled substance laws, except for a single violation involving possession of marijuana for personal use, are deportable); 9 U.S.C. 1229b(a)(3) (Attorney General may cancel removal of a deportable permanent resident only if permanent resident has not committed an aggravated felony); 8 U.S.C. § 1101(a)(43)(B) (illicit trafficking in a controlled substance is an aggravated felony). Ortiz then moved to withdraw his guilty pleas, his motion was denied, and this appeal followed.

Two sets of fact are in dispute. The first concerns whether Ortiz's plea counsel, Scott Gleason, told him that pleading guilty would result in mandatory deportation. Gleason states in an affidavit submitted by the Commonwealth that he properly informed his client of the immigration consequences of his pleas, including that pleading guilty would result in mandatory deportation. However, Ortiz's appellate counsel, Inna Landsman, claims in her own affidavit, which was based on her conversations with Gleason, that, while Gleason told Ortiz that a conviction would result in mandatory deportation, he never explained to Ortiz that pleading guilty and receiving straight probation would result in a conviction. According to Landsman, she learned from Ortiz's plea counsel that he did not explain to his client that pleading guilty would result in mandatory deportation. Ortiz and Dawn Upton, his child's grandmother who assisted Ortiz throughout the proceedings, assert in affidavits of their own that Gleason told them that pleading guilty with a sentence of straight probation would carry no immigration consequences. Ortiz had been informed by outside immigration counsel that "pretrial probation" would not result in his automatic deportation.

The second set of disputed facts concerns the nature of the plea negotiations. Ortiz, Upton, and Ortiz's immigration attorney, Schuyler Pisha, aver that the Commonwealth initially offered Ortiz a plea bargain, which he rejected due to its immigration consequences. These affidavits conflict over whether this deal was for five to eight years or time served, and hence whether this offer would have led to Ortiz's immediate release or required him to spend up to three more years in prison. Moreover, the affidavits of Gleason and Landsman are silent on the plea offer issue, there is no prosecutor's affidavit in the record, and the Commonwealth at oral argument did not concede that this plea offer ever took place.

Discussion. Ortiz's motion to withdraw his guilty pleas is based on an ineffective assistance of counsel claim. These claims are governed by Commonwealth v. Saferian, 366 Mass. 89 (1974), which requires the defendant to demonstrate both that counsel's behavior has fallen "measurably below that which might be expected from an ordinary fallible lawyer" and that said behavior has prejudiced the defendant. Id. at 96. We evaluate these prongs in turn, in light of the Supreme Judicial Court's application of Saferian to the withdrawal of pleas with immigration consequences following the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356 (2010). See, e.g., Commonwealth v. Clarke, 460 Mass. 30 (2011) ; Commonwealth v. Sylvain, 466 Mass. 422 (2013) ; Commonwealth v. DeJesus, 468 Mass. 174 (2014). We review the matter for abuse of discretion or significant error of law, and accept findings of fact if supported by the evidence. Id. at 178.

1. Counsel's assistance. To succeed in his claim, Ortiz must show that plea counsel failed to inform him of the immigration consequences of his plea "in a language that the client could comprehend." DeJesus, supra at 181. Counsel must consider the client's particular circumstances, including his or her linguistic and educational backgrounds. See ibid. at n.5 ("We do not dictate the precise language that must be employed, as each case will present different circumstances; for example, information given to an educated client who speaks English as his first language may take a different form when the client has a limited ability to comprehend or understand English").

Here, the affidavits conflict. Gleason claims that he told Ortiz that pleading guilty and receiving probation would result in mandatory deportation. The other affidavits state the opposite. Moreover, Ortiz's purported choice of three years of probation with no credit for time served-subjecting him to the possibility of ten years in jail in the event of a probation violation-over time served might well be inexplicable unless Ortiz believed that a sentence of probation would not subject him to removal. This could support Ortiz's contention that Gleason did not advise him properly. But the evidence in the record is too sparse for us to ascertain the details of the plea deal that Ortiz purportedly rejected or to assess the affiants' credibility.

The plea judge did not make any factual findings on whether Gleason properly informed Ortiz of the immigration consequences of his plea-he denied Ortiz's motion solely on prejudice grounds. As we discuss in more detail below, we think the judge's conclusion about prejudice is problematic, see infra, and will remand the case. On remand, the judge should hold an evidentiary hearing to determine the nature of Gleason's advice, bearing in mind Ortiz's lack of a high school diploma, relatively low intelligence test scores, and any other factors that may be relevant under DeJesus, to his understanding, as well as any plea negotiations between Ortiz and the Commonwealth.

2. Prejudice. The judge denied Ortiz's motion in a handwritten margin ruling stating only that the defendant's motion to withdraw his guilty pleas was to be denied because "no rational defendant would go to trial in this case given the case against the defendant and the harsh mandatory punishment." As we have noted, the judge made no findings to support this conclusion. As a result, we do not know whether the judge adequately considered the particular circumstances of this case in reaching his conclusion as our case law requires.

To show that going to trial would have been rational, a defendant must demonstrate that he had an available substantial ground of defense, that there is a reasonable probability that a different plea bargain could have been negotiated, or that there exist special circumstances to support the conclusion that the defendant would place particular emphasis on immigration consequences in deciding whether to plead guilty. Clarke, supra at 47-48. If he is to be believed, Ortiz may have met his burden with respect to all three of these prongs and, therefore, he could have shown that there is a reasonable probability that he would have gone to trial but for counsel's errors. See ibid.

First, in his affidavit, Ortiz describes his deep ties to the United States. These ties, again if the defendant is to be believed, may amount to the "special circumstances" that render a decision to go to trial rational, regardless of whether he has met either of the other two prongs. He has lived here since the age of three. All his family, including a young son, are here. He has no friends in the Dominican Republic and would have no meaningful way to start a life there. It is precisely circumstances like these in which "preserving his 'right to remain in the United States may be more important to [Ortiz] than any jail sentence.' " DeJesus, supra at 184, quoting from Padilla, supra at 368. Indeed, according to Gleason, in an uncontested and not self-serving portion of his affidavit, avoiding deportation was Ortiz's "primary motivation for going to trial" initially, even though the case against him, at that point, was "extremely strong." Thus, it appears to be undisputed that there are special circumstances, as defined by our case law, which support the reasonable possibility that Ortiz would not have pleaded guilty had he understood the immigration consequences of his actions. In other words, if after a hearing, Ortiz establishes that he was provided with erroneous advice by trial counsel, it seems as though he can also establish prejudice. Nonetheless, it is not for us to make that determination in the absence of findings by the judge, which should be made on remand.

Independently of that, Ortiz already made the decision to go to trial on these charges and it also appears that Ortiz now has a substantial ground of defense that he did not have when he decided to go to trial in the first instance, because of the revelation of Annie Dookhan's misconduct and the corresponding conclusive presumption of egregious government misconduct. See Bridgeman v. District Attorney of the Suffolk Dist., 476 Mass. 298, 305 (2017) (conclusive presumption of egregious government misconduct exists when Dookhan signed the drug certificate as primary or confirmatory chemist). Assuming there is sufficient evidence to go forward to retry the defendant, Dookhan's involvement would, at the least, provide grounds for Ortiz to impeach the Commonwealth's witnesses with respect to drug test results. While, again, the determination whether there is a reasonable probability that Ortiz would have gone to trial but for what, by hypothesis, are counsel's errors should be made by the motion judge on remand in the first instance; unless there is some reason the defendant would have made a different decision than he did in real life against a stronger case, it would seem that under this independent avenue the defendant could establish prejudice.

The Commonwealth argues that any prejudice that might have resulted from Gleason's alleged errors was cured by the plea colloquy. Even assuming a judge's colloquy could cure the failure of counsel to meet the Padilla standard, during the colloquy, the judge told Ortiz only that "a conviction of these offenses will result in your deportation, exclusion from reentry to the United States or denial of naturalization, all according to Federal Law." If Ortiz and his affiants are to be believed, Ortiz did not understand that his pleading guilty and receiving probation would result in a conviction. Hence, the colloquy would not necessarily have communicated to Ortiz, in terms that he could comprehend, that his pleas would result in mandatory deportation.

Conclusion. The order denying the defendant's motion for new trial is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

      When Landsman mentioned this plea offer at the hearing on the motion to withdraw the guilty pleas, the prosecutor did not object.


text:
    COMMONWEALTH v. QUILLAN Q., a juvenile.
    17-P-243
    Appeals Court of Massachusetts.
    Entered: March 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The juvenile was charged with carrying a loaded firearm without a license, G. L. c. 269, § 10(n ) (count 1), carrying a firearm without a license, G. L. c. 269, § 10(a ) (count 2), and possessing ammunition without a firearm identification card, G. L. c. 269, § 10(h )(1) (count 3). The juvenile filed a motion to suppress evidence on the ground that it was the fruit of an illegal seizure. After a hearing, the motion judge denied the motion. The juvenile was found delinquent on all counts and now appeals.

The juvenile argues that the police lacked reasonable suspicion based on specific and articulable facts that crime was afoot at the time that he and a companion were stopped. The judge's subsidiary findings, which are not contested, included the following. On patrol at 12:30 A.M . in a high crime area in an unmarked, but identifiable, police car, Officer Christopher Stevens and Officer Joseph McDonough observed the juvenile walking with a companion. The companion stared at the police car as it twice drove by. The juvenile periodically looked back at it. The officers, coming from behind the two, pulled up about twenty feet in front of them and exited the vehicle. The two individuals immediately changed direction and began to walk away from the officers. While the individual in a gray hooded sweatshirt-the juvenile-turned to walk away, he grabbed his left side, "made like a big adjustment, pulling his pant leg up," and it appeared that he was lifting something on his left side. Officer McDonough testified that he had been instructed on specific characteristics to identify people who might be armed with an illegal weapon. These characteristics include baggy clothing, favoring one side more than another, and grabbing at one's side to do security checks (i.e., making sure that the weapon is remaining in place) because individuals who are carrying illegal weapons usually do not use holsters for their weapons.

At this point, Officer Stevens believed that the juvenile was armed and asked the individuals to "hold up a second." We will assume, without deciding, that this is the point at which the juvenile was "stopped" for constitutional purposes.

Officers have the right to make a threshold inquiry of an individual if suspicious conduct gives the officer reason to believe that the person has committed, is committing, or is about to commit a crime. Commonwealth v. Silva, 366 Mass. 402, 405 (1974). The officer's actions must "be based on specific and articulable facts and the specific reasonable inferences which follow from such facts in light of the officer's experience." Id. at 406. Additionally, the officer must have an "individualized" suspicion that the person he seizes committed a crime, is committing a crime, or is about to commit a crime. Commonwealth v. Warren, 475 Mass. 530, 534 (2016). The court must assess reasonable suspicion based on factors present before the officer has seized the individual. Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 555 (2015). Reasonable suspicion is based on the totality of the circumstances. See Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005).

Staring at the police, even changing direction to avoid the police, may well be wholly innocent. But when combined with the juvenile's behavior in grabbing his left side, making a "big adjustment, pulling his pant leg up," and appearing to lift something on his left side-all supporting a conclusion based on the officer's training that the juvenile unlawfully possessed a firearm-that conduct must be seen in a different light. Taken together, the facts described above provided the reasonable suspicion necessary to justify the officer's investigatory stop. Therefore the judge did not err in denying the motion to suppress.

Finally, the Commonwealth notes that count 3 is duplicative of count 1, and we agree. Therefore, as it requests, the adjudication on count 3 will be vacated. See Commonwealth v. Johnson, 461 Mass. 44, 51-54, 59 (2011).

As to counts 1 and 2, the adjudications of delinquency are affirmed. As to count 3, the adjudication of delinquency is vacated, the finding is set aside, and the charge shall be dismissed.

Affirmed in part; vacated and dismissed in part.

      We note that the Commonwealth argues that it was suspicious that the juvenile and his companion were wearing "hoodies" on a humid summer night; we need not and do not rely on this fact in our assessment. See Warren, 475 Mass. at 534-536. We note also that the Commonwealth contends that it is suspicious that the juvenile had the hood of his sweatshirt tightened around his face, but since we need not rely on that fact in reaching our decision, we do not decide whether or to what extent this conduct can be deemed suspicious.


text:
    COMMONWEALTH v. Dennis SENA.
    17-P-246
    Appeals Court of Massachusetts.
    Entered: March 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 1997, the defendant pleaded guilty to possession of marijuana with intent to distribute, G. L. c. 94C, § 32. Nearly two decades later, he filed a second motion for new trial, which was denied. He now appeals. He first argues that the plea judge erred in accepting his plea because he did not admit to facts sufficient to establish each element of the offense, and that the motion judge thus erred in denying his motion for new trial. See Commonwealth v. Del Verde, 398 Mass. 288, 297 (1986). The defendant provides no support for the factual narrative that he alleges gave rise to his conviction, though we note that, contrary to the premise of his first argument, his possession of an ounce of marijuana and a scale (which is part of his narrative) could have supported a finding by a jury of guilty of possession with intent to distribute. In any event, the question is what facts were recited by the prosecutor or the defendant at the colloquy, with respect to which there is no evidence, or even an allegation. Consequently, the defendant's first argument fails.

The defendant also argues that the plea judge erred by failing to warn him that his conviction could subject him to sentencing enhancements in future cases. The defendant misunderstands the nature of the required warning: it is about enhancements to the sentence on the crime to which a defendant is pleading due to that offense being a second or subsequent offense, not a warning about collateral consequences of the plea should the defendant be convicted on a subsequent charge. See Commonwealth v. Shindell, 63 Mass. App. Ct. 503, 505 (2005) ; Commonwealth v. Williams, 89 Mass. App. Ct. 383, 390 (2016). See also MacLean v. State Bd. of Retirement, 432 Mass. 339, 343 n.6 (2000).

Order denying motion for new trial affirmed.

      The defendant filed a prior motion for new trial; the order denying that motion was affirmed by this court. See Commonwealth v. Sena, 88 Mass. App. Ct. 1118 (2015).


text:
    COMMONWEALTH v. TY T., a juvenile.
    17-P-538
    Appeals Court of Massachusetts.
    Entered: March 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the juvenile was found delinquent on charges of witness intimidation, see G. L. c. 268, § 13B, and assault and battery causing serious bodily injury, see G. L. c. 265, § 13A(b )(i). During trial, he moved for a required finding of not delinquent on both charges, claiming that the evidence was insufficient, and he presses that claim in this appeal. We affirm.

We discern no merit in the juvenile's argument that there was insufficient evidence to prove that he intended to interfere with a witness in a criminal proceeding. Under the witness intimidation statute, the Commonwealth was required to prove beyond a reasonable doubt that the juvenile "directly or indirectly, willfully (a ) threaten[ed], or attempt[ed] or cause[d] physical injury, emotional injury, [or] economic injury ... to; ... [or] (c ) ... intimidate[d] or harasse[d] another person who is: (i) a witness or potential witness at any stage of a ... criminal proceeding of any type." G. L. c. 268, § 13B, as appearing in St. 2006, c. 48, § 3.

Here, the victim was a witness in a pending criminal proceeding against an individual, Henry Doe, who played football and associated with the juvenile. On August 20, 2015, Doe shot the victim nineteen times with a BB gun. Six days later, on August 26, 2015, the juvenile approached the victim and asked why he "snitch[ed]" on "this person." The victim testified that the "person" to whom the juvenile was referring was Doe. The victim proceeded to tell the juvenile that he did not snitch, but the juvenile "kept thinking [the victim] was lying" and began hitting the victim multiple times. Based on this evidence, the jury could have found beyond a reasonable doubt that the juvenile intended to intimidate the victim or dissuade him from testifying as a witness in the pending criminal case against the juvenile's football teammate and associate.

Likewise, there was sufficient evidence to establish delinquency on the charge of assault and battery causing "serious bodily injury," defined by the statute as "bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death." G. L. c. 265, § 13A(c ), as appearing in St. 2002, c. 35, § 1. An impairment of a bodily function need not be permanent to qualify as a "serious bodily injury." See Commonwealth v. Jean-Pierre, 65 Mass. App. Ct. 162, 163-167 (2005).

At the hospital, the victim was diagnosed with blunt head trauma, a laceration to the left corner of his lip requiring stitches, a laceration of his spleen requiring limitations of his activities to prevent risk of further bleeding, and a kidney contusion. As a result of his lacerated spleen, the victim's discharge orders required him to refrain from normal activities for three weeks, including no contact sports, bike riding, or lifting anything heavier than text books; he was also required to leave classes early so he would not be jostled by other students in the school corridors. In addition, the laceration to the corner of the victim's lip was closed with stitches. Before being discharged, the victim experienced a reduced appetite and discomfort when chewing. His discharge documentation reflected limitations on his diet. From these facts, the jury reasonably could have inferred that the laceration of the victim's spleen impaired his ability to engage in normal life activities, and that the cut on the corner of the victim's lip impaired his ability to chew and eat food normally. The evidence was sufficient to sustain the adjudications.

Adjudications of delinquency affirmed.

      The statute also includes a specific intent element, requiring the Commonwealth to establish the juvenile's actions were done "with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby with a ... criminal proceeding." G. L. c. 268, § 13B, as amended by St. 2010, c. 256, § 120.

      The notes at the time of discharge included the following comment: "fluids encouraged with sm. amounts of solids tol. well."

      We have held that dietary limitations resulting from injury sustained in a battery satisfy the requirement of "serious bodily injury" for purposes of the statute. See Commonwealth v. Jean-Pierre, supra at 162, 167. Although the injuries in that case were more severe, the underlying fact of impairment of a bodily function remains.


text:
    COMMONWEALTH v. Glenn SHANOSKI.
    17-P-667
    Appeals Court of Massachusetts.
    Entered: March 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Glenn Shanoski, appeals from his Superior Court convictions of operating under the influence of intoxicating liquor, fifth offense, G. L. c. 90, § 24(1)(a )(1), and negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a ). Concluding that the Commonwealth established that the defendant was represented by counsel during the proceedings resulting in his prior convictions and presented sufficient evidence of the defendant's identity, we affirm.

1. Representation by counsel. Convictions that were obtained in violation of the right to counsel may not be used as predicates for a subsequent offense. See Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 905 (2010). Since 2002, we have applied a presumption of regularity (at least regarding convictions after Gideon v. Wainwright, 372 U.S. 335, 344-345 [1963] ) that the right to counsel was honored "unless the defendant first makes a showing that the conviction in issue was obtained without representation by, or waiver of, counsel." Commonwealth v. Saunders, 435 Mass. 691, 696 (2002). If the defendant makes such a showing, the Commonwealth has the burden of proving that the defendant was represented by counsel. Ibid.

We pretermit the question whether the defendant rebutted the presumption of regularity, as the Commonwealth demonstrated that the defendant was represented by counsel during his 1995 plea. The docket sheet has the name "Coyne" listed in the space for counsel's name. See Commonwealth v. Napier, 417 Mass. 32, 33 (1994) ("A notation of the name of counsel for the defendant on the face of a complaint is sufficient to satisfy the Commonwealth's burden"). The word "self," by contrast, is written in smaller text in the far upper-right corner of the space, over what appears to be an accounting of the fees owed by the defendant. Although the defendant argues that these notations could have some meaning other than that the defendant was represented by counsel, the rest of the docket sheet dispels that notion. The docket sheet reflects a "LF 100" and then, shortly after the defendant's admission to sufficient facts, "Legal & mitt fees remitted." At the time of the defendant's plea, G. L. c. 211D, § 2A, as amended by St. 1994, c. 60, § 153, stated, "Any person provided counsel under the provisions of this chapter shall be assessed a counsel fee of one hundred dollars, which may be waived at the discretion of the court." There is no reasonable explanation for the imposition of the legal counsel fee other than the appointment of counsel to represent the defendant. Accordingly, we discern no error in the trial judge's admission of the 1995 prior conviction or his reliance upon it in convicting the defendant as a fifth-time offender.

2. Sufficiency of the evidence. When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713 (2014). To sustain a conviction, the Commonwealth must prove beyond a reasonable doubt that the defendant is the person who committed the charged crime. Commonwealth v. Blackmer, 77 Mass. App. Ct. 474, 483 (2010).

Here, the female civilian witness observed a man driving erratically. He stopped and approached her car, and she noticed that he was "a big guy," dressed in an MBTA uniform, smelled of alcohol, and was "mumbling" in "a slurred voice." She told him, "I don't want you to get in trouble, I just want you to get off the road." She called the police and then observed the responding officers interacting with the driver.

One of the responding officers observed a female siting in a car and the defendant, whom he identified, on the opposite side of the road. The defendant had a "strong odor of alcoholic beverage" and "slurred speech." He repeatedly told the officer "that the nice girl was just really worried about his welfare." He later told the booking officer that he worked for the MBTA. From this evidence, the jury could rationally conclude that the big MBTA employee smelling of alcohol and speaking in a slurred voice arrested by the officers was the same big MBTA employee smelling of alcohol and speaking in a slurred voice observed driving by the civilian witness. See Commonwealth v. Coates, 89 Mass. App. Ct. 728, 731-732 (2016) ; Commonwealth v. Beaulieu, 90 Mass. App. Ct. 773, 780 (2016).

The fact that the civilian witness did not identify the defendant as the driver directly does not defeat the sufficiency of the evidence. "Proof of the identity of the person who committed the offense may be established in a number of ways and '[i]t is not necessary that any one witness should distinctly swear that the defendant was the [person], if the result of all the testimony, on comparison of all its details and particulars, should identify [the person] as the offender." Id. at 780-781, quoting from Blackmer, 77 Mass. App. Ct. at 483. Accordingly, the trial judge correctly denied the defendant's motion for a required finding of not guilty.

Judgments affirmed.

      The defendant raises no challenge to the Commonwealth's use of his other three prior convictions. Indeed, at trial, the defendant conceded the sufficiency of the evidence of the other three prior convictions.

      In 2004, the Legislature created a much more complicated waiver procedure for the legal counsel fee. See G. L. c. 211D, § 2 1/2, as amended by St. 2004, c. 149, § 195.

      The record reflects that the defendant is six feet, two inches tall, and weighs 265 pounds, which the jury presumably could observe for themselves.


text:
    Andrew DALTON v. DIVISION OF INSURANCE BOARD OF APPEALS & another.
    17-P-705
    Appeals Court of Massachusetts.
    Entered: March 21, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Erin Deveny, in her official capacity as registrar of motor vehicles.

   The plaintiff, Andrew Dalton, appeals from a Superior Court judgment affirming a one-year loss of license that was imposed on a July 9, 2015, conviction of operating under the influence of liquor (OUI), G. L. c. 90, 24(1)(a )(1). On appeal, Dalton contends that the revocation was in violation of G. L. c. 90, § 24D, and implicated several constitutional rights, including being in violation of due process, double jeopardy, and the separation of powers clause. We affirm.

Background. On January 26, 2015, Westwood police arrested Dalton for OUI. This was his first OUI arrest and, thus, it qualified for a G. L. c. 90, § 24D, alternative disposition. On January 30, 2015, in Dedham District Court, Dalton admitted to sufficient facts and, pursuant § 24D, the judge continued the matter without a finding for one year, imposed the statutory fees and fines, subjected Dalton to a forty-five day loss of license (rather than the one-year loss of license otherwise required under the statute), and ordered Dalton to complete a qualifying alcohol education program.

Several months later, on June 23, 2015, while Dalton was still on probation for his first OUI, State police arrested Dalton for a second OUI. As a result of this new arrest, a violation of probation hearing was held in the Dedham District Court on July 9, 2015. At the conclusion of that hearing, the judge found Dalton in violation of his § 24D disposition and revoked Dalton's probation; a guilty finding entered on Dalton's January 26 OUI.

Upon notice of the conviction, the registry of motor vehicles (RMV) revoked Dalton's license to operate a motor vehicle for one year. Initially, the RMV made the revocation effective from July 20, 2015. However, on its own initiative, the RMV revised the effective date of this revocation to July 9, 2015-the date a conviction had entered on the January 26 OUI offense.

Dalton appealed this revocation to the board of appeals (board), which affirmed the revocation. Dalton then sought judicial review of the board's decision in the Superior Court. There, the board's motion for judgment on the pleadings was allowed and, thus, the one-year revocation of Dalton's license remained in place. This appeal followed.

Discussion. All issues presented are issues of law, which we review de novo. Callahan v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 90 Mass. App. Ct. 196, 199 (2016).

1. Statutory challenge. Dalton contends that G. L. c. 90 does not allow the RMV to revoke his license. We are not persuaded.

General Laws c. 90, § 24(1)(b ), as appearing in St. 1982, c. 373, § 3, provides that an offender's first OUI conviction "shall" result in a license revocation unless the offender qualifies for and consents to probation under G. L. c. 90, § 24D. "[W]here an order of [ § 24D ] probation has been revoked by the court, ... the registrar shall forthwith revoke said person's operator's license or right to operate which was restored ... without further hearing." G. L. c. 90, § 24E, as amended by St. 1982, c. 373, § 7. Revocations for first-time OUI offenders under § 24(1)(b ) last "until one year after the date of conviction." G. L. c. 90, § 24(1)(c )(1), as appearing in St. 1994, c. 25, § 4.

Here, the RMV faithfully followed this statutory scheme. Dalton avoided the one-year loss of license on his first OUI arrest by entering into a § 24D disposition, which included a one-year probation conditioned on several factors. Dalton properly does not dispute that his subsequent arrest while on probation constituted a violation of his probation. Nor is there any dispute that the judge revoked his probation and entered a guilty finding.

Accordingly, pursuant to § 24E, Dalton lost the benefit of his § 24D disposition once a conviction entered on the January 26 offense. As such, the RMV properly imposed the statutorily required one-year loss of license for first-time offenders. Recognizing the error in its first notice of revocation, the RMV also properly revised the date of revocation to commence on July 9, 2015-the date of conviction. See DiGregorio v. Registrar of Motor Vehicles, 78 Mass. App. Ct. 775, 783 (2011) (license revocation must run from date of conviction). We perceive no error.

2. Constitutional challenges. Dalton also raises several constitutional challenges to the one-year revocation, which we also conclude lack merit. First, we do not agree that the revocation of his right to drive implicated Dalton's right against double jeopardy, as the revocation's main purpose is public safety and not punishment. Luk v. Commonwealth, 421 Mass. 415, 426-427 (1995). Second, the RMV, which was statutorily mandated to impose a one-year loss of license absent successful completion of the § 24D disposition, did not overstep its bounds or interfere with the power of the judiciary when it revoked Dalton's right to operate for one year. See Breslin v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 70 Mass. App. Ct. 131, 134 (2007) (when revoking a license, the RMV can do no "more than make a simple numerical count of the convictions on record"). Finally, Dalton waived his due process argument by only raising it in a footnote in his brief. See Mole v. University of Mass., 442 Mass. 582, 603 n.18 (2004) (court need not consider an argument raised only in a footnote of a brief). And, in any event, Dalton was afforded a full hearing and the opportunity to contest the probation violation that statutorily triggered the license revocation. We discern no error.

Judgment affirmed.

      The plaintiff also appealed a second license revocation stemming from his June 23 OUI, but does not challenge that revocation in this court.

      As to the plaintiff's claim for declaratory relief, such relief is inappropriate here. See Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 135 (2013) ("[D]eclaratory relief is not an appropriate remedy where the validity of an adjudication ... in an individual case is being challenged" [quotation omitted] ).


text:
    Matthew SUTPHIN & another v. Townsend D. THORNDIKE & another.
    17-P-307
    Appeals Court of Massachusetts.
    Entered: March 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Cynthia Sutphin.

      William H. Thorndike, Inc.

   This action arose out of the purchase of a 1939 wooden hulled schooner. After a jury-waived trial, a judge found in favor of the plaintiffs on count I, which he treated as a claim of money had and received. He dismissed all other claims and counterclaims. The defendants appeal from the judgment in the amount of $14,783.81. We affirm.

We recite the judge's findings of facts relevant to the issues before us. In 2006, Matthew and Cynthia Sutphin purchased the schooner for $165,000 from a corporation wholly owned and controlled by Townsend D. Thorndike. The Sutphins made a nonrefundable $50,000 deposit on signing, agreeing to pay the balance of the purchase price over time. A long and troubled transactional course followed, marked by numerous late payments, default, litigation, and multiple attempts at settlement. The history is set forth in the judge's decision and need not be repeated in detail here.

Pertinent to the present case, in June of 2008, the parties entered into a settlement agreement relating to an earlier lawsuit brought by Thorndike against the Sutphins. In September of 2009, the parties entered into a "modification" of that settlement agreement, which called for, inter alia, the additional payments of $20,000 to Thorndike and $3,500 to Thorndike's attorney, continuation of monthly payments of $3,500 to Thorndike, and for the Sutphins to "pay all accrued interest no later than 12/31/09, unless sooner paid." In late December, 2009, the Sutphins, through their attorney, requested a payoff figure due under the modification from Thorndike. In response, Thorndike provided a "cryptic" accounting, claiming he was owed $73,882.04. On January 31, 2010, the Sutphins personally delivered $74,000 to Thorndike at his home in New Hampshire. Thorndike accepted this amount. The judge ultimately found that because the Sutphins overpaid Thorndike by $14,783.61, they were entitled to the return of the money under the equitable doctrine of money had and received. See Blue Cross of Mass., Inc. v. Travaline, 398 Mass. 582, 588 (1986) ; Rubin v. Murray, 79 Mass. App. Ct. 64, 81 n.17 (2011).

We must accept the trial judge's findings of fact unless they are clearly erroneous. See Cavadi v. DeYeso, 458 Mass. 615, 624 (2011). We review a judge's ultimate decision to grant equitable relief for abuse of discretion. Ibid.

On appeal, Thorndike admits that he believed his payoff figure calculation was correct. However, he argues that, contrary to the finding of the judge, the evidence showed that Matthew Sutphin believed the calculation "was in error," and, therefore, recovery under mutual mistake of fact cannot lie. We disagree.

The judge's finding that the Sutphins were operating under a mistake of fact was not clearly erroneous. Matthew Sutphin did testify that he sensed that "something was wrong" with the figure, but he "couldn't put [his] finger on it." He also testified that he and his attorney had some doubts about the accounting, which looked "rough" and was not professional. However, his attempts to obtain more information about Thorndike's calculations, through his attorney, were unsuccessful. Matthew Sutphin consistently testified that he relied on Thorndike's accounting to establish the balance due and owing to obtain title; and he expressly denied having any specific knowledge of an overpayment when he delivered the money to Thorndike.

The cases relied upon by Thorndike in support of his argument are inapposite, and do not provide persuasive grounds to disturb the judgment. The Sutphins were not seeking the rescission or reformation of the modification or any written contract, but rather the return of an overpayment, which in equity and good conscience belonged to them. The judge was warranted in finding a shared mistake of fact here. The evidence established that no one involved, including the bookkeeper, knew precisely how much was owed. The cases relied upon by Thorndike involving written contracts based on alleged mistakes at the time of contract formation and unilateral mistakes are distinguishable from the present circumstances and unavailing. See Covich v. Chambers, 8 Mass. App. Ct. 740, 747-748 & n.12 (1979) ; Nissan Autos. of Marlborough, Inc. v. Glick, 62 Mass. App. Ct. 302, 307-308 (2004). The principles of law set forth in Restatement (Second) of Contracts §§ 152 - 154 (1981) pertain to contract formation and are also inapplicable on the facts of this case.

Judgment affirmed.

      By failing to address any of their counterclaims in their brief, the defendants have waived them. See King v. Driscoll, 418 Mass. 576, 585 n.8 (1994). Although the plaintiffs also filed a notice of appeal, they did not enter an appeal in this court. Any cross appeal is waived.

      The judge issued posttrial findings of fact and rulings of law in a comprehensive written order for judgment.

      The judge found, based on testimony that he found credible, that the payoff figure was "cobbled together by Thorndike and his part[-]time bookkeeper, neither of whom understood the calculation of periodic interest nor did they appreciate the disarray in the defendant's records."

      The judge found that the Sutphins added in $117.96 because they "feared being a dollar short." Thorndike had in hand an agreement for judgment that allowed him to take possession of the vessel. The Sutphins, the judge found, feared Thorndike's power to repossess the vessel.

      On January 27, 2010, the Sutphins' attorney notified Thorndike's attorney that he still had "not received an accounting as to how [the payoff figure was] calculated" and that he "suppose[d] this [would] have to wait until after the fact, as both efforts to provide this detail have ended up in indecipherable e-mail and a handwritten sheet with no particular clarity."

      After delivering the money, Matthew Sutphin discovered errors in the payoff figure calculations, including payments that had not been credited to the Sutphins.

      We are not persuaded by Thorndike's claim that the Sutphins were aware of the mistake and thus must bear the risk for that mistake. As the judge recognized, the Sutphins' state of mind with respect to the accuracy of Thorndike's calculation was a disputed issue for the fact finder to determine.

      To the extent we do not discuss other arguments made by the parties, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY v. Patricia FEDERICO.
    16-P-1236
    Appeals Court of Massachusetts.
    Entered: March 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      As trustee for HSI Asset Securitization Corporation Mortgage Pass-Through Certificates, Series 2006-WMC1.

   The plaintiff Deutsche Bank National Trust Company (bank) commenced this summary process action in the District Court in December, 2012, against the defendant Patricia Federico. Federico asserted numerous challenges to the bank's right of possession, including that the assignment of the mortgage to the bank was void because it did not comply with the pooling and servicing agreement, that the foreclosing attorneys did not have authority to conduct the foreclosure, and that the default and foreclosure notices were legally insufficient. After a jury trial, judgment for the bank for possession and rent entered in May, 2015.

Federico appealed the judgment to the Appellate Division of the District Court Department, but she did not file her brief in that court in a timely manner. Ultimately, after Federico had been granted several extensions of time to file her brief, the Appellate Division dismissed her appeal. Federico filed a timely notice of appeal from the decision and order of the Appellate Division. See G. L. c. 231, § 109.

On appeal to this court, Federico raises numerous issues concerning the underlying summary process proceeding in the District Court. Essentially, she contends that she received an unfair trial and that the trial judge was biased against her. However, because Federico did not present any of those claims to the Appellate Division, she may not raise them here.

"In a civil case, after a judgment in the District Court, an 'appellant is barred from pursuing in the Appeals Court a claim of error that it failed to raise at the Appellate Division.'" Gossels v. Fleet Natl. Bank, 453 Mass. 366, 371 (2009), quoting from Perlin & Connors, Civil Procedure in the Massachusetts District Court § 12.26, at 160 (3d ed. Supp. 2007). "When an appellant's claim of error is 'not presented to or decided by the Appellate Division[,] [i]t cannot be considered by us.'" Gossels, supra, quoting from Kelsey v. Hampton Ct. Hotel Co., 327 Mass. 150, 152 (1951).

The only issue properly before this court is the propriety of the Appellate Division's dismissal of Federico's appeal for failure to file a brief after numerous extensions of time. This determination turns on whether the Appellate Division abused its discretion. See Spivey v. Neitlich, 59 Mass. App. Ct. 742, 744 (2003) ("We apply the abuse of discretion standard to determine whether the judge was warranted in dismissing the appeal"). Federico's brief, however, does not address the propriety of the Appellate Division's order dismissing her appeal; therefore, we do not address the issue. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) (Appellate court "need not pass on questions or issues not argued in the brief"); Tynan v. Attorney Gen., 453 Mass. 1005 (2009).

Decision and order of Appellate Division affirmed.

      In an order dated October 25, 2016, denying Federico's motion for a stay of eviction pending appeal, a single justice of this court indicated that Federico "may still pursue her appeal from the Appellate Division's 6/2/16 dismissal of her appeal."

      We note that Federico also failed to provide this court with a copy of the Appellate Division's decision. This failure would serve as an independent basis for refusing to reach the substance of her appeal. See Chokel v. Genzyme Corp., 449 Mass. 272, 278-280 (2007). We acknowledge the bank's inclusion of the decision in an addendum to its brief.


text:
    COMMONWEALTH v. David A. WHITE.
    17-P-351
    Appeals Court of Massachusetts.
    Entered: March 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, David A. White, was convicted of two counts of abuse prevention order violation, G. L. c. 209A, § 7, for contacting his ex-girlfriend, Mary Smith (a pseudonym), via text messages on October 17 and 18, 2015. The defendant does not dispute that text messages from his telephone to Smith's were sent on those dates. He admits composing the October 17 message, which begins, "Hi. This is biggest risk that I could ever take," but denies sending it, arguing that it was sent by accident by a friend who was borrowing his telephone at the time and was technologically unsophisticated. Smith responded to this message with "Text 777," and the October 18 message from the defendant's telephone read, "What does 777 mean? I don't get it. I'm not your enemy." The defendant denies composing or sending the October 18 message, claiming that he knew what "777" meant and therefore would not have asked.

To prove a defendant guilty of violating an abuse prevention order, the Commonwealth must prove beyond a reasonable doubt:

"(1) that a court had issued an abuse [prevention] order; (2) that the order was in effect on the date when its violation allegedly occurred; (3) that the defendant knew the relevant terms of the order were in effect, either by having received a copy of the order or by having learned of the terms of the order in some other way; and (4) that the defendant violated a term of the order."

Commonwealth v. Shea, 467 Mass. 788, 794 (2014).

In addition, when the alleged violation is of a no contact order, and where there is evidence that the alleged contact may have occurred by accident, "the Commonwealth must prove beyond a reasonable doubt that the contact was not accidental." Ibid. On appeal, the defendant argues that the Commonwealth introduced insufficient evidence both to prove contact and to disprove accident.

In assessing the sufficiency of the evidence, we consider whether the evidence, viewed in the light most favorable to the Commonwealth, could satisfy a rational trier of fact of each element of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The evidence here-including the content of the messages and the number of them sent within a short period of time-was sufficient when viewed under the Latimore standard both to prove contact, and to disprove accident, beyond a reasonable doubt.

Judgments affirmed.


text:
    COMMONWEALTH v. William A. GIBSON.
    17-P-11
    Appeals Court of Massachusetts.
    Entered: March 23, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), third offense. On appeal, the defendant argues (1) the judge erroneously denied his motion for mistrial, (2) the prosecutor's closing argument improperly shifted the burden of proof to the defendant, and (3) the prosecutor's closing argument improperly vouched for the credibility of the Commonwealth's witnesses. We affirm.

Discussion. 1. Motion for mistrial. The defendant argues that the judge abused his discretion in denying his motion for mistrial after the Commonwealth's two police witnesses testified about the defendant's sobriety. The defendant contends he was prejudiced by the troopers' testimony since it constituted opinions on the ultimate issue as to whether the defendant was operating under the influence of alcohol.

"The denial of a motion for mistrial is reviewed for abuse of discretion. Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990). Given the trial judge's 'broad discretion in deciding whether to declare a mistrial,' we have instructed that 'this court should defer to that judge's determination of whether [there was] prejudicial error, how much any such error infected the trial, and whether it was possible to correct that error through instruction to the jury.' Commonwealth v. Amran, 471 Mass. 354, 359 (2015), quoting Commonwealth v. Thomas, 429 Mass. 146, 157 (1999). This is because '[a] trial judge is in the best position to determine whether a mistrial, an extreme measure available to a trial judge to address error, is necessary, or whether a less dramatic measure, such as a curative instruction, is adequate.' Amran, supra at 360." Commonwealth v. Santana, 477 Mass. 610, 625-626 (2017).

The evidence here was sufficiently strong to render implausible an inference that the jury might have reached a different result. With respect to the issue of intoxication, the officers testified to numerous indicators of the defendant's intoxicated state. This included (1) observations of the defendant's driving, including crossing the yellow line, making an abrupt start from a stop, and crossing the lane divider when making a right turn; (2) the defendant's general appearance including flushed face, bloodshot and glassy eyes, thick-tongued speech; (3) moderate odor of alcohol on the defendant's breath; (4) the defendant's swaying and appearing unbalanced; (5) the defendant's admission to the first trooper to having consumed alcohol (a "couple" earlier); and (6) the defendant's poor performance on field sobriety tests. Given the strength of this evidence, the judge's striking the improper opinion evidence, and the judge's curative instructions to the jury, we conclude that the jury were not substantially swayed by any error. Accordingly, we conclude that the judge did not abuse his discretion in denying the motion for mistrial. See Commonwealth v. Canty, 466 Mass. 535, 545 (2013).

2. Prosecutor's closing argument. At the conclusion of the prosecutor's closing argument, defense counsel raised two objections. He claimed that the prosecutor shifted the burden to the defense when he argued there could have been a number of innocent explanations for the defendant's blood shot and glassy eyes. Additionally, he claimed that the prosecutor improperly vouched for the police witnesses' credibility.

"In determining whether an argument was improper, we examine the remarks 'in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial.' Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005), quoting Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992)." Commonwealth v. Miller, 457 Mass. 69, 79 (2010). Here, we find no error in the prosecutor's statement that "[t]here wasn't any evidence of other explanations for the defendant's bloodshot and glassy eyes." The comment was a clear response to the defense attorney's attempts on cross-examination of the police witnesses to offer alternative explanations for the defendant's blood shot and glassy eyes. "It is not improper for counsel to respond to arguments raised by the defense, see Commonwealth v. Anderson, 411 Mass. 279, 286 (1991), and to make an argument presented by way of reasonable inferences that could be drawn from the evidence, see Commonwealth v. Ruiz, 442 Mass. 826, 835 (2004)." Commonwealth v. Miranda, 458 Mass. 100, 116 (2010).

Finally, the defendant asserts that the prosecutor improperly vouched for the credibility of the two police witnesses. We disagree. "Improper vouching can occur if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury." Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). Here, the prosecutor did not express any personal belief in the credibility of the witnesses, nor did he suggest that he had any personal knowledge that supported the witnesses' credibility. Taken with the judge's instruction to the jury that closing arguments by counsel are not evidence, we conclude that there was no error in the prosecutor's comments, let alone prejudicial error.

Judgment affirmed.

      The defendant had been charged with OUI, fifth offense. At a jury-waived trial immediately following the verdict, the defendant was found guilty of the subsequent offense portion of the charge.

      The first trooper testified, over the defendant's objection, that "[he] formed the opinion [the defendant] was under the influence." The second trooper testified "[t]hat [the defendant] was under the influence of intoxicating liquor and he couldn't operate a vehicle safely" or "drive safely." The defendant objected, and the judge sustained the objections and instructed the jurors to disregard those answers. The second trooper also testified, over the defendant's objection, that he formed the opinion that the defendant was under the influence of alcohol.

      The curative instructions were highly specific and made clear that the striken responses were not to be considered. It is well settled that "[t]he jury are presumed to follow the judge's instruction." Commonwealth v. Amran, 471 Mass. at 360.