author: Mathias, Judge.

text:
    Tevin Dejaron WINBORN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 71A03-1708-CR-1890
    Court of Appeals of Indiana.
    Filed April 12, 2018
    Attorney for Appellant: Jeffery M. Haupt, Law Office of Jeffery Haupt, South Bend, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Matthew B. MacKenzie, Deputy Attorney General, Indianapolis, Indiana
   Mathias, Judge.

[1] Tevin Dejaron Winborn ("Winborn") appeals his convictions for Level 5 felony carrying a handgun without a license, Level 5 felony battery to a pregnant woman, and Level 6 felony strangulation. Specifically, Winborn appeals the trial court's denial of his motion to suppress the evidence obtained from Tashala Berry's ("Berry") apartment, arguing that the search and seizure of his backpack violated his rights under the Fourth Amendment. Winborn also argues that the evidence was insufficient to support his battery and strangulation convictions.

[2] We affirm.

Facts and Procedural History

[3] Winborn and Berry had been dating for approximately two and one-half years leading up to June 2016. Winborn regularly spent the night at Berry's apartment and occasionally left personal items there as well. For a time, Winborn had a key to Berry's apartment, but she took it back from him in May 2016. The two had a tumultuous relationship, and there were several holes in the walls of Berry's apartment caused by both her and Winborn.

[4] On June 9, 2016, Berry found out that she was pregnant with Winborn's child and told him. On the evening of June 20, Berry and Winborn got into a heated argument in an unidentified person's apartment where Winborn allegedly choked Berry and slammed her to the kitchen floor. The two went back to Berry's apartment that evening, and Winborn stayed the night. At some point the next morning or early afternoon, the two got into a second argument in which Berry and Winborn both exchanged blows, and the two fell on to Berry's bed where Winborn choked her again. Berry testified that Winborn used one hand when choking her and he did so with enough force to cause her to stop breathing. Tr. Vol. 2, p. 151. Throughout their confrontations, Berry explained, "I am swinging on him. I am punching him. But he is smacking me and choking me." Id. at 173.

[5] During the scuffle on June 21, Berry's phone broke, and she then left the apartment and walked to her aunt's house which was nearby. At her aunt's, Berry called 911. South Bend Police Department Officers Dertz and Teague arrived on scene soon after. Berry relayed what happened, and she indicated that Winborn was still in her apartment.

[6] Officer Teague testified that he asked Berry if the officers had permission to enter the apartment, and that "[s]he actually said yes and left us keys to her apartment at that time." Id. at 11. Prior to approaching the apartment, Officer Dertz looked Winborn up in the "cadis" program, "and it confirmed that he did have a prior conviction for-I think it was just a handgun without a license at the time." Id. at 38-39.

[7] The officers then approached Berry's apartment and were able to have a brief conversation with Winborn at the front door. Winborn thought the officers were there to serve a warrant for a different offense, and when he realized this was not the case, he invited the officers inside to discuss the altercation with Berry. Soon after, Officer Teague brought Winborn out to his squad car, placed him in the back, and advised him of his Miranda rights.

[8] In the squad car, Winborn provided a recorded version of what took place with Berry. During the conversation, Winborn mentioned to Officer Teague that he had a backpack inside Berry's apartment and that the backpack might contain a firearm. Winborn also explained that he thought the gun may be Berry's. Officer Dertz was not privy to any of this information prior to entering the apartment.

[9] While Winborn was in the squad car with Officer Teague, Officer Dertz went inside Berry's apartment. Inside Berry's bedroom, Officer Dertz noticed a black Nike backpack in the closet. The closet door was open, but the bag was zipped closed. Officer Dertz testified that the bag caught his eye "because the closet was full of women's clothes." Id. at 43. He also testified that when he saw the bag, he assumed it belonged to Winborn. Id. at 61.

[10] Officer Dertz proceeded to bend down and pat the bag, and he felt a hard object in the front pouch which he believed was a gun. He unzipped the bag and found a fully loaded .38 revolver. Winborn acknowledged that it was his bag when Officer Dertz carried it out of Berry's apartment.

[11] Winborn was arrested and charged with Level 5 felony carrying a handgun without a license, Level 5 felony battery to a pregnant woman, Level 6 felony strangulation, and Class A misdemeanor carrying a handgun without a license. Prior to trial, Winborn filed a motion to suppress the gun recovered from the apartment under both the Fourth Amendment and Article 1, Section 11. A three-day bench trial commenced on May 22, 2017, and the court decided to wait until the end of trial to rule on the motion to suppress.

[12] At the conclusion of trial, the court denied Winborn's motion to suppress and found him guilty as charged. On August 8, the court sentenced Winborn to two years for strangulation, five years for battery resulting in bodily injury to a pregnant woman, and five years for felony carrying a handgun without a license, all to run concurrently. The court did not enter judgment on the Class A misdemeanor carrying a handgun without a license.

[13] Winborn now appeals.

Inevitable Discovery

[14] Winborn argues that the trial court erred in denying his motion to suppress because the warrantless search and seizure of his backpack violated his rights under the Fourth Amendment. However, we do not reach the substance of his Fourth Amendment claim because we find it dispositive that under the unique facts and circumstances before us here, the backpack and firearm would have been inevitably discovered regardless of any constitutional violation.

[15] To encourage police officers' compliance with the Fourth Amendment, "evidence seized in violation of the Constitution must be excluded at trial unless an exception to this 'exclusionary rule' applies." Shotts v. State , 925 N.E.2d 719, 723 (Ind. 2010). One exception to the exclusionary rule is the inevitable discovery exception which "permits the introduction of evidence that eventually would have been located had there been no error." Gyamfi v. State , 15 N.E.3d 1131, 1137 (Ind. Ct. App. 2014) (citation and quotation omitted).

[16] Winborn contends that "whether or not [the] challenged evidence would have been properly obtained inevitably is too speculative." Appellant's Br. at 18. This is because "discussions of the backpack came up with Winborn only after Officer Dertz had found the bag and examined the contents." Id. We disagree.

[17] Contemporaneous to the time that Officer Dertz was searching in the house, a Mirandized Winborn was telling Officer Teague in the back seat of the squad car that he had a backpack in the house and that there might be a gun in that backpack. Tr. Vol. 2, pp. 26-27, 31. Although perhaps stretched by other applications in other cases, this is a perfect example of the rationale behind the inevitable discovery rule.

[18] In addition, whether or not officers found the backpack and firearm, Winborn was going to be removed from the property based on the alleged strangulation and battery. In such an event, Officer Dertz testified that the individual is allowed to gather their personal belongings. Id. at 55. Prior to leaving the scene, Winborn would have identified the backpack as his, and because Winborn was still going to be arrested for the alleged battery and strangulation, officers would have discovered the gun during processing "to make sure there wasn't anything illegal or anything that shouldn't go to jail with [him]." Id. at 56. Thus, under the Fourth Amendment, the gun would have been admissible because it would have been located eventually, even if we assume the officer's search and seizure of Winborn's backpack was improper. See Nix v. Williams , 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

[19] Because the gun would have been admissible at trial under the inevitable discovery exception to the exclusionary rule, the trial court did not abuse its discretion when it denied Winborn's motion to suppress.

Sufficiency of the Evidence

[20] When reviewing a claim of insufficient evidence to sustain a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Jackson v. State , 50 N.E.3d 767, 770 (Ind. 2016). It is the fact-finder's role, not ours, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. We will affirm the conviction unless no reasonable fact-finder could have found the elements of the crime proven beyond a reasonable doubt. Id. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Drane v. State , 867 N.E.2d 144, 146-47 (Ind. 2007).

[21] At the time of Winborn's Level 6 felony strangulation conviction, the State had to show that he: (1) knowingly or intentionally; (2) in a rude, angry, or insolent manner; (3) applied pressure to Berry's throat or neck; (4) in a way that impeded Berry's normal breathing or blood circulation. Ind. Code § 35-42-2-9(b). And to convict Winborn of Level 5 felony battery of a pregnant woman, the State had to show that he: (1) knowing or intentionally; (2) touched Berry; (3) a pregnant woman; (4) in a rude, insolent, or angry manner; (5) resulting in bodily injury to Berry; and (6) Winborn knew Berry was pregnant at the time. Ind. Code § 35-42-2-1(c)(1) & (g)(3). Winborn argues that there was insufficient evidence to support the conclusion that he touched Berry in a rude, insolent, or angry manner. We disagree.

[22] Berry testified that Winborn choked her and struck her in the face on both June 20 and June 21. Tr. Vol. 2, p. 173-74. Berry also testified that on June 21, Winborn choked her with enough force that she stopped breathing for "a couple of seconds." Id. at 151. Moreover, the emergency room doctor who examined Berry stated that Berry informed him that she had been "struck and choked" and that she exhibited "some redness to her neck on the left side." Id. 88-89. Winborn bases his argument on the fact that Berry's aunt, both responding officers, and the paramedic on scene did not notice any visible injuries on Berry. However, this is nothing more than a request for us to weigh the evidence differently than the trial court, which we cannot do.

Conclusion

[23] Based on the unique facts and circumstances before us, the trial court did not abuse its discretion when it denied Winborn's motion to suppress because the inevitable discovery exception to the exclusionary rule applies, and therefore, the firearm was admissible at trial. We also find that there was sufficient evidence presented to convict Winborn of strangulation and battery of a pregnant woman. Accordingly, we affirm.

Baker, J., and Kirsch, J., concur.

      Winborn does not challenge the search under Article 1, Section 11 of the Indiana Constitution.

      We held oral argument in this case at Cathedral High School in Indianapolis, Indiana on March 20, 2018. We thank the faculty, staff, and students for their gracious hospitality. We also thank counsel for their excellent written and oral advocacy.

      It is unclear where this altercation took place. Berry did not remember where it was; she simply stated that "[i]t was in somebody else's apartment." Tr. Vol. 2, p. 152.

      Berry testified that she did not give officers consent to search her apartment. See Tr. Vol. 2, pp. 171-72, 185. However, it is clear that the trial court credited the officer's version of events regarding Berry's consent as it stated in its order, "Berry gave consent to the officers to search the home." Appellant's App. p. 193.

      Incredibly, the gun also had the hammer cocked, and Officer Dertz testified that he considered himself lucky that when he "reached down and patted it that it didn't fire." Tr. Vol. 2, p. 46. In addition, the firearm was stolen. Id. at 29, 49.

      This is a Level 5 felony because Winborn had a prior conviction for carrying a firearm without a license. See I.C. § 35-47-2-1(e)(2)(A)(i).

      We note that Winborn did not challenge the sufficiency of the evidence supporting his conviction for Level 5 felony carrying a handgun without a license. While we may raise this issue sua sponte , see Miller v. State , 616 N.E.2d 750, 751 (Ind. Ct. App. 1993), we decline to do so. However, because this issue was raised during oral argument, we briefly address it here. Carrying a handgun without a license may be proven by constructive possession, which required the State to prove that Winborn had "both the intent and the capability to maintain dominion and control over the [handgun]." Bradshaw v. State , 818 N.E.2d 59, 62-63 (Ind. Ct. App. 2004). Here, the gun was mingled in with other items owned by Winborn including his clothing. See id. at 63 (explaining that the comingling of a firearm with items owned by the defendant can prove constructive possession). Winborn himself testified that he brought a backpack to Berry's on June 20. Tr. Vol. 3, p. 17-18. Officer Teague testified that Winborn told him that he had clothing in the backpack. Tr. Vol. 2, pp. 26-27. And the gun was found in his backpack. In light of this evidence, we conclude that there is probative evidence from which the trial court could conclude that Winborn constructively possessed the gun. And even if we found the evidence insufficient to support the conviction for Level 5 felony carrying a handgun without a license, Winborn's sentence would not be affected because that five-year sentence runs concurrently with his five-year sentence for Level 5 felony battery of a pregnant woman.

      We disagree with Winborn's argument that we should apply the incredible dubiosity rule and find Berry's "testimony regarding him strangling her and smacking her so inherently improbable that it is not sufficient to sustain his convictions for strangulation and battery." Appellant's Br. at 20. Our supreme court has explained that the incredible dubiosity rule "is limited to cases where a sole witness presents inherently contradictory testimony which is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of defendant's guilt." Majors v. State , 748 N.E.2d 365, 367 (Ind. 2001) (emphasis in original) (citation omitted). Here, it is clear that Berry's testimony is consistent with what she told her aunt, the responding officers, a responding paramedic, and the emergency room doctor-that she had been struck and choked by Winborn. Moreover, Berry's apartment showed signs of an altercation as it was in disarray and there were several holes in the walls. Berry's testimony was not contradictory, and there was plenty of circumstantial evidence to support Winborn's convictions. Simply put, this case does not present an example for application of the incredible dubiosity rule.


source: Caselaw Access Project

author: Vaidik, Chief Judge.

license: Public Domain

text:
    Daniel SPARKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 49A05-1710-CR-2218
    Court of Appeals of Indiana.
    FILED April 18, 2018
    Attorney for Appellant: Valerie K. Boots, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] Lindsey Badanek's home was burglarized while she was at work and, among other things, her employer-issued iPad was taken. She suspected that her ex-boyfriend, Daniel Sparks, had something to do with it. She called the police, but no further action was taken at the time. Later that night, Lindsey logged into Sparks's Facebook account using a password that he had previously given her. She found an audio recording where Sparks was discussing an iPad owned by Eli Lilly that was going to get "pinged," yelling at a woman for her husband "veering" off the list, and threatening to "bang[ ] him on top" for doing so. Lindsey called the police again, and a video was made of her playing the recording from Sparks's Facebook account. A search warrant was issued, and the iPad was found at Sparks's home. Sparks was convicted of burglary, and he now appeals, arguing that the federal Wiretap Act was violated.

[2] Federal courts have uniformly concluded that the Wiretap Act covers only "contemporaneous" interceptions of wire, electronic, or oral communications, which are understood as the acquisition of communications in transit-rather than the acquisition of communications in storage. Here, it is undisputed that Lindsey discovered on Sparks's Facebook account a recording of a conversation that had already taken place. Finding no violation of the federal Wiretap Act or error in any of the other issues that Sparks raises, we affirm the trial court.

Facts and Procedural History

[3] Lindsey and Sparks started dating in 2012 and had three children together. They lived on Depot Drive in Indianapolis. In March 2016, Lindsey asked Sparks to move out of the house. She and the children stayed in the house.

[4] On April 20, Lindsey, who worked at a credit union inside Lilly Corporate Center, returned home from work around 5:30 p.m. Upon returning home, she noticed that her employer-issued iPad was not where she had left it that morning. When Lindsey went to her bedroom to look for it, she discovered that additional items were missing: her collection of Nike Air Max shoes, a laptop, a hard drive containing family pictures, a ring, and a North Face jacket. Lindsey thought it was "odd" that the items missing were "personal" to her. Tr. Vol. II p. 96. Lindsey noted that other electronics were not taken from her house, including another tablet that was right next to her iPad, televisions, and her daughter's hoverboard. Lindsey immediately suspected that Sparks "had something to do with it" and called 911. Id. at 97. Indianapolis Metropolitan Police Department Officer Michael Hodge responded. Lindsey told Officer Hodge that she suspected Sparks was involved. Officer Hodge made a report.

[5] Later that night, Lindsey logged into Sparks's Facebook account using a password that he had previously given her. She wanted to see if Sparks was "talking about breaking into [her] house."Id. at 100. Lindsey found an audio recording in his Facebook messages. See Ex. 2. Lindsey recognized Sparks's voice on the recording. Sparks was angrily yelling at a woman about her "husband":

Let me tell you something about that iPad. When you turn that bit** on, Eli Lilly owns that iPad. That iPad is going to get pinged off. Guess who is going to get popped with it. I told that stupid mother fu**er ... not to veer off the goddamn list. I told him if he veered off the list, he's going to get fu**ed up. When I catch your husband, I'm banging him on top for disrespecting me and for going against what the fu** I told him.... [G]o find him and tell him how serious this mother fu**ing situation is.

Id. Lindsey called the police again, and two officers responded, Officer Erik Stevenson and Sergeant Charles Wheeler. Lindsey played the recording for them. A video was then made of Lindsey playing the recording from Sparks's Facebook account. Lindsey looked "further into [Sparks's] Facebook account" and found a "message" from Sparks to William Bingaman sent "right after that recording" indicating that Sparks was angry with Bingaman. Tr. Vol. II p. 103. Lindsey gave this information to Sergeant Wheeler. Also, Sergeant Wheeler learned that Sparks was on GPS monitoring through Marion County Community Corrections and was home when Lindsey's house was burglarized.

[6] Sergeant Wheeler prepared an affidavit in order to seek a search warrant for Sparks's home, and a magistrate issued a search warrant in the early-morning hours of April 21. See Suppression Ex. 2. During the execution of the search warrant, police found an iPad, which was later determined to be Lindsey's employer-issued iPad.

[7] The State charged Sparks with Class A misdemeanor theft and Level 4 felony burglary. Before trial, Sparks filed a motion to suppress the video of Lindsey playing the recording from Sparks's Facebook account and the iPad found in his home. After a hearing, the trial court denied Sparks's motion. A jury trial was then held. At trial, Bingaman testified that he broke into Lindsey's house and took the items at Sparks's direction. Sparks told Bingaman to take Lindsey's shoes and clothing but not to take anything that belonged to the children. Sparks said that he wanted to get back at Lindsey because she had kicked him out and thrown away his things. Bingaman agreed to help Sparks because he needed money to buy drugs. According to Bingaman, he gave the iPad to Sparks and sold the other items. The jury found Sparks guilty as charged. The trial court entered judgment of conviction for burglary only and sentenced him to six years with two years suspended.

[8] Sparks now appeals.

Discussion and Decision

I. Facebook Recording

[9] Sparks first contends that the trial court erred in admitting Exhibit 2-the video of Lindsey playing the recording from Sparks's Facebook account. Sparks argues that "[Lindsey] and/or the police" violated the federal Wiretap Act, 18 U.S.C. § 2511, and the Indiana Wiretap Act, Ind. Code art. 35-33.5, "by intercepting part of a telephone call made by Sparks without authorization." Appellant's Br. p. 13. But Sparks did not make claims under these statutes in the trial court. Rather, in his motion to suppress, in his supporting brief, and at the hearing, Sparks claimed only that his rights pursuant to the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution were violated because Lindsey was a "government actor." See Appellant's App. Vol. II pp. 91, 95-100; Tr. Vol. II p. 5. Objecting at trial on one ground and raising another ground on appeal usually results in waiver of the issue. See Houser v. State , 823 N.E.2d 693, 698 (Ind. 2005). Here, however, the State points out waiver only with regard to Sparks's claim under the Indiana Wiretap Act. Therefore, we will address Sparks's challenge to Exhibit 2 under the federal Wiretap Act.

[10] The federal Wiretap Act makes it unlawful to "intentionally intercept[ ], endeavor[ ] to intercept, or procure[ ] any other person to intercept or endeavor to intercept[ ] any wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). The federal Wiretap Act also prohibits the intentional "disclos[ure]" or "use[ ]" of the contents of an unlawfully intercepted wire, oral, or electronic communication. Id. § 2511(1)(c), (d). "[I]ntercept" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication." Id. § 2510(4). "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial ...." Id. § 2515.

[11] The State argues that the federal Wiretap Act does not apply here. It asserts that the Act only applies to "contemporaneous" interceptions of communications and highlights that here, Lindsey discovered on Sparks's Facebook page a recording of a conversation that had already taken place. The federal Wiretap Act does not explicitly require that the acquisition of a communication occur contemporaneously with its transmission. 2 Wayne R. LaFave et al., Criminal Procedure , § 4.6(b) (4th ed. 2017). Nonetheless, federal courts have uniformly concluded that the Wiretap Act covers only "contemporaneous" interceptions of communications, which are understood as the acquisition of communications in transit-rather than the acquisition of communications in storage, which are addressed by the Stored Communications Act. See Epstein v. Epstein , 843 F.3d 1147, 1149-50 (7th Cir. 2016) (collecting cases but not reaching issue), reh'g denied , cert. denied ; Luis v. Zang , 833 F.3d 619, 628 (6th Cir. 2016) ("All of the circuit courts that have considered the issue ... have concluded ... that the acquisition of a communication must be contemporaneous with its transmission in order for an 'intercept' to occur."), reh'g denied ; Theofel v. Farey-Jones , 359 F.3d 1066, 1077-78 (9th Cir. 2004) ("[T]he Act applies only to acquisition contemporaneous with transmission." (quotation omitted) ); Fraser v. Nationwide Mut. Ins. Co. , 352 F.3d 107, 113-14 (3d Cir. 2003) (adopting "the reasoning of our sister circuits" who have held that interception can only occur contemporaneously with transmission); United States v. Steiger , 318 F.3d 1039, 1048-49 (11th Cir. 2003) ("[A] contemporaneous interception-i.e., an acquisition during 'flight'-is required to implicate the Wiretap Act with respect to electronic communications."); see also LaFave, § 4(b) (explaining that courts have concluded that the acquisition of a communication must be contemporaneous with its transmission).

[12] Notably, Sparks does not dispute this line of authority. The evidence shows that Lindsey discovered on Sparks's Facebook account a recording of a conversation that had already taken place. Lindsey did not intercept a communication in transit; rather, she accessed a communication in storage. Accordingly, there is no violation of the federal Wiretap Act. We therefore affirm the trial court's admission of Exhibit 2.

II. iPad

[13] Sparks next contends that the trial court erred in admitting the iPad found during the search of his home because the search warrant was not supported by probable cause. The State argues that Sparks has waived this issue for review because defense counsel did not object when the State introduced the iPad into evidence at trial. See Tr. Vol. II pp. 118-23. Sparks acknowledges that defense counsel did not object at trial; however, he claims that the trial court was nevertheless aware of this issue because he filed a pretrial motion to suppress the iPad. See Appellant's App. Vol. II p. 91. The failure to make a contemporaneous objection to the admission of evidence at trial results in waiver of the error on appeal. Jackson v. State , 735 N.E.2d 1146, 1152 (Ind. 2000). This is because a contemporaneous objection affords the trial court the opportunity to make a final ruling on the matter in the context in which the evidence is introduced. Id. Sparks's failure here results in waiver of appellate review.

[14] Waiver notwithstanding, we address Sparks's claim. In deciding whether to issue a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ..., there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). As a reviewing court, our duty is simply to ensure that there was a substantial basis for finding probable cause. Watkins v. State , 85 N.E.3d 597, 603 (Ind. 2017). We owe great deference to the initial probable-cause determination and will not invalidate warrants by interpreting probable-cause affidavits "in a hypertechnical, rather than a commonsense, manner." Id. (quotation omitted).

[15] The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article 1, Section 11 of the Indiana Constitution contains nearly identical language. These constitutional principles are codified in Indiana Code section 35-33-5-2, which details the information to be contained in an affidavit for a search warrant. State v. Spillers, 847 N.E.2d 949, 953 (Ind. 2006). Where a warrant is sought based on hearsay information, the affidavit must either:

(1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or
(2) contain information that establishes that the totality of the circumstances corroborates the hearsay.

Ind. Code § 35-33-5-2(b).

[16] The trustworthiness of hearsay for the purpose of proving probable cause can be established in a number of ways, including where: (1) the informant has given correct information in the past, (2) independent police investigation corroborates the informant's statements, (3) some basis for the informant's knowledge is demonstrated, or (4) the informant predicts conduct or activity by the suspect that is not ordinarily easily predicted. Spillers, 847 N.E.2d at 954. These examples, however, are not exclusive.

[17] Our courts have observed that there are two categories of informants: professional informants and cooperative citizens. Clifford v. State , 474 N.E.2d 963, 969 (Ind. 1985). The test for determining the reliability of each group of informant is different. Id. Cooperative citizens who act as informants

include[ ] victims of crime or persons who personally witness a crime. These individuals generally come forward with information out of the spirit of good citizenship and the desire to assist law enforcement officials in solving crime. They are usually one-time informants and no basis exists from prior dealings to determine their reliability. Further, information of this type usually goes to past completed crimes rather than future or continuing crimes. Some jurisdictions have therefore held that informants of this type are to be considered reliable for the purpose of determining probable cause unless incriminating circumstances exist which cast suspicion upon the informant's reliability.

Richard v. State , 820 N.E.2d 749, 754 (Ind. Ct. App. 2005) (quoting Pawloski v. State , 269 Ind. 350, 380 N.E.2d 1230, 1232-33 (1978) ), trans. denied ; see also Allen v. State , 798 N.E.2d 490, 496 (Ind. Ct. App. 2003) ("[O]ur supreme court has previously held that eyewitnesses and crime victims are considered presumptively reliable unless circumstances exist which call into question their credibility."); Frasier v. State , 794 N.E.2d 449, 457 (Ind. Ct. App. 2003) ("Information gleaned from ... eyewitnesses or victims of a crime may be relied upon in determining whether probable cause exists for a search where there are no circumstances which call the informant's motives into question."), reh'g denied , trans. denied . But the requirement for corroboration is not totally eliminated. Richard , 820 N.E.2d at 754.

[18] Here, Sergeant Wheeler set forth in the affidavit that Lindsey reported that her house had been burglarized while she was at work and that several items were missing, including her employer-issued iPad. Lindsey suspected that her ex-boyfriend, Sparks, "had someone take the items," but she didn't know who. Suppression Ex. 2. Lindsey said that Sparks had told her that he was "going to have someone come over and take her stuff." Id. Because Lindsey was a crime victim, she was presumptively reliable. Accordingly, her statements could be used to determine that probable cause existed to search Sparks's home. Moreover, her hearsay statements were corroborated by the recording she discovered on Sparks's Facebook account.

[19] Sparks argues, however, that the affidavit contains inaccuracies and omits a detail about the recording and therefore the information about the recording cannot be used to corroborate Lindsey's hearsay statements. We reject this argument. As for the alleged inaccuracies, Sparks points to the following portions of the affidavit:

On April 21, 2016 at 12:27 AM, Officer Erik Stevenson was dispatched to [XXXX] Depot Dr. to speak with Lindsey Badan[e]k about the recent burglary to her residence.... Officer Stevenson listened to the recording and heard a male[']s voice that Lindsey stated was Daniel Sparks, yelling at a female that he was going to "fu** him up for deviating from the list he gave him " [ ]meaning the guy he had break in Lindsey[']s h[ouse] ....
I, Sgt. Charles Wheeler, ... arrived at the Depot Dr. address and also spoke to [Lindsey] and she played an audio recording the voice of which she stated she knew was her ex-boyfriend and father of her children, Daniel Sparks. She stated she found the recording on Facebook and on it Daniel Sparks is heard speaking to a female, saying he was trying to find William Bingam[a]n because Bingam[a]n stole things out of [Lindsey's] house that weren't on his list. He specifically states that Bingam[a]n "veered from the list" and took an [i]Pad that belongs to Eli Lilly, [Lindsey's] employer, and that if turned on it could be "pinged" and he would be caught .

Suppression Ex. 2 (emphases added). Sparks identifies the following alleged inaccuracies: (1) the affidavit says that the recording refers to William Bingaman by name when in actuality the recording only refers to him as the woman's "husband"; (2) the affidavit says that Sparks "gave" Bingaman the list, but the recording does not explicitly say that Sparks was the source of the list; (3) the affidavit says that Sparks had Bingaman break into Lindsey's house, but the recording does not explicitly say that Sparks was responsible for Bingaman for breaking in; and (4) the affidavit says that Sparks would be the one caught if the iPad was turned on and pinged, but the recording more generally says "Guess who is going to get popped with it." As for (1), contrary to Sparks's suggestion, the affidavit does not say that the recording mentions Bingaman by name. Rather, it says that Lindsey told Sergeant Wheeler that the man her ex-boyfriend is talking about on the recording is Bingaman. As for (2)-(4), we find that they are reasonable inferences given the recording as a whole, including the angry and threatening tone of Sparks's voice.

[20] As for the omission, Sparks notes that Sergeant Wheeler did not include the fact that Lindsey discovered the recording by logging into Sparks's Facebook account using his password and argues that had the magistrate known this, it would have impacted his decision to issue the search warrant. He argues:

Judges and magistrates are all too familiar with vengeful and underhanded tactics in the realm of feuding exes, particularly where the couple have children together. Any such tactics are highly relevant to credibility determinations. Especially where a person's accusations against a former domestic partner are essentially uncorroborated hearsay, a magistrate must be accurately apprised of all relevant facts surrounding the accusations in order to make a fair and informed decision about probable cause for the warrant.

Appellant's Reply Br. pp. 14-15. Given the high level of corroboration provided by the recording, we have serious doubts that the fact that Lindsey discovered the recording by logging into Sparks's Facebook account using a password that he had previously given her would have changed the magistrate's decision to issue the search warrant.

[21] Finally, Sparks argues that there was no reasonable nexus between the information in the affidavit and the location to be searched, i.e., his home. He highlights that, as even the affidavit provides, he was home when the burglary was committed. However, according to the affidavit, Lindsey, from the very beginning, suspected that Sparks "had someone take the items," but she didn't know who. Suppression Ex. 2. Lindsey also said that Sparks had told her that he was "going to have someone come over and take her stuff." Id. Lindsey later discovered the recording. In the recording, Sparks said:

Let me tell you something about that iPad. When you turn that bit** on, Eli Lilly owns that iPad. That iPad is going to get pinged off. Guess who is going to get popped with it. I told that stupid mother fu**er ... not to veer off the goddamn list. I told him if he veered off the list, he's going to get fu**ed up. When I catch your husband, I'm banging him on top for disrespecting me and for going against what the fu** I told him.... [G]o find him and tell him how serious this mother fu**ing situation is.

Taken in context, there was a substantial basis that the iPad would be found at Sparks's home. Given Sparks's anger at the woman's husband for "veer[ing]" off the list, it was reasonable to presume that Sparks was worried about being caught with the iPad. See Appellant's Br. p. 29 (Sparks conceding that it was either he or the unnamed "husband" who was going to get "popped").

[22] In conclusion, the search warrant was based on a practical, commonsense decision that there was a fair probability that contraband or evidence of a crime would be found in Sparks's home. Because the warrant was supported by probable cause, the trial court did not err in admitting the iPad into evidence. We therefore affirm the trial court.

Barnes, J., and Pyle, J. concur.

      There is no evidence as to what type of message this was. See Tr. Vol. II p. 103.

      Bingaman pled guilty to Level 4 felony burglary for his role in this crime. Ex. 9.

      Sparks asserts that he preserved his claim under the Indiana Wiretap Act because he cited Henson v. State, 790 N.E.2d 524 (Ind. Ct. App. 2003), trans. denied , in his supporting brief. Henson , however, focuses on the federal Wiretap Act and mentions the Indiana Wiretap Act only in passing. Simply citing this decision without also discussing, or even citing, the statute itself was not sufficient to preserve this claim.

      The exclusionary rule does not apply to "electronic communications." See, e.g. , United States v. Steiger , 318 F.3d 1039, 1050 (11th Cir. 2003).

      Sparks makes no argument under the Stored Communications Act. See 18 U.S.C. § 2701.

      On appeal, Sparks admits that it is his voice on the recording. See, e.g. , Appellant's Br. p. 13 ("a telephone call made by Daniel Sparks").

      The quote marks imply that the statements are verbatim quotes from the recording, but they do not appear to be verbatim quotes.


text:
    In the MATTER OF the INVOLUNTARY TERMINATION OF the PARENT-CHILD RELATIONSHIP OF A.S. (Minor Child) and X.S. (Father), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner
    Court of Appeals Case No. 53A01-1710-JT-2340
    Court of Appeals of Indiana.
    Filed April 18, 2018 Publication Ordered May 7, 2018
    Attorney for Appellant: Kyle K. Dugger, Monroe County Public Defender, Bloomington, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Abigail R. Recker, Deputy Attorney General, Indianapolis, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] X.S. ("Father") appeals the termination of his parental rights to his daughter, arguing that the trial court should have granted his motion to continue the termination hearing. We agree and remand for further proceedings.

Facts and Procedural History

[2] This is an appeal from the termination of Father's parental rights by Monroe Circuit Court 7, but the case revolves around Father's history of drug-related criminal charges in Monroe Circuit Court 2. In 2007, Father was charged with Class B felony possession of cocaine ("Case 1186"). He pled guilty and was sentenced to twenty years with ten years suspended. He was released to probation in March 2012. Two years later, in April 2014, Father was charged with Class D felony possession of cocaine, Class D felony strangulation, and Class A misdemeanor domestic battery ("Case 468"). At the same time, the State petitioned to revoke Father's probation in Case 1186. Father pled guilty as charged in Case 468 and was sentenced to one year in Community Corrections, to be served on home detention. The court also ordered Father to serve one year of his suspended sentence in Case 1186 on home detention, running consecutive to the sentence in Case 468, for a total of two years on home detention.

[3] On December 9, 2014, while Father was serving his home-detention sentence, his daughter, A.S., was born. At birth, A.S. exhibited drug-withdrawal symptoms, so hospital staff ran a drug screen, which came back positive for cocaine. The Department of Child Services (DCS) was contacted and began working with Father and A.S.'s mother. DCS offered the parents substance-abuse treatment through its Sobriety Treatment and Recovery Team (START) program. Both parents, however, continued to use illegal drugs and failed drug screens. On December 22, two weeks after A.S. was born, DCS removed her from the home. The next day, DCS filed a child in need of services (CHINS) petition in Circuit Court 7.

[4] One week after A.S. was removed from the home, Father was arrested for violating the terms of his home detention in Case 468. However, Circuit Court 2 allowed him to continue serving his sentence on home detention. In January 2015, Father voluntarily completed a substance-abuse evaluation, and it was recommended that he begin intensive outpatient treatment (IOP). On February 12, a hearing was held on the CHINS petition, Father admitted to the allegations, and A.S. was adjudicated a CHINS. A dispositional hearing was scheduled for March 9. Before that hearing, Father voluntarily began IOP. After the dispositional hearing, the court ordered Father to participate in services with DCS, including individual therapy, IOP, and supervised visits with A.S.

[5] DCS was in the process of setting up services for Father when, on April 27, he was arrested and charged with three counts of dealing in cocaine, a Level 5 felony ("Case 397"). The charges were pending for fifteen months, and the record includes very little information regarding what transpired in the CHINS case over this time. We only know that Father remained incarcerated at the Monroe County Jail, that he exercised visits with A.S. every sixty days, and that he completed eight sections of a cognitive-skills workbook that focused on cognition mapping, traditional versus criminal values, relationships, personal inventories, boundaries, and anger management. Tr. Vol. II p. 39.

[6] In July 2016, Father pled guilty to one count of dealing in cocaine in Case 397. Circuit Court 2 sentenced Father to four years in the Department of Correction (DOC) and also ordered him to serve the remainder of his suspended sentence in Case 1186-nine years-consecutive to his sentence in Case 397, for a total of thirteen years. The State recommended Father for Purposeful Incarceration, which is a nine-to-eleven-month program for "chemically addicted offenders" whose addictions "are directly related to their criminal behavior." Purposeful Incarceration , www.in.gov/idoc/2798.htm. The program combines group and individual counseling to address substance-abuse recovery, rational thinking, criminal lifestyles, dysfunctional families, work stress, anger management, and relapse prevention. Tr. Vol. II pp. 40-41. The court followed the State's recommendation, referred Father to Purposeful Incarceration, and stated that it would "modify Defendant's sentence if he successfully complete[d] Purposeful Incarceration." Father's Ex. 1.

[7] Less than a week after Father was sentenced in his criminal cases, DCS petitioned to terminate his parental rights in Circuit Court 7. A termination hearing was scheduled for March 27, 2017. Ten days before that hearing, DCS moved to continue, and the hearing was reset for April 24. On April 24, DCS sought another continuance, and the court rescheduled the hearing for July 6. The trial court, on its own motion, continued the hearing until July 31. On July 10, Father moved to continue because of DCS's failure to meet discovery deadlines, and DCS joined his motion. The hearing was once again rescheduled, this time for September 5. Father sought another continuance on August 24, stating that he would graduate from Purposeful Incarceration on September 29 and that the criminal court had guaranteed him a sentence modification upon graduation. He asked that the hearing be scheduled after he completed Purposeful Incarceration. The trial court denied Father's motion, and the termination hearing was held on September 5.

[8] The morning of the hearing, Father renewed his motion to continue, but his request was denied. Father attended the hearing telephonically because in-person attendance "could cause a delay in graduating from" Purposeful Incarceration. Tr. Vol. II p. 4. Father testified that he expected to be released from prison by the end of 2017 based on his completion of Purposeful Incarceration. Father believed he would be released to a transitional housing program and that he would be re-hired by his former employer. Regarding A.S., Father continued to have supervised visits with her every sixty days in prison and had not missed a visit. They ate together, read, and played. At the visit before the termination hearing, A.S. waved goodbye to Father and blew him a kiss.

[9] Family Case Manager (FCM) Branan Neeley stressed that Father's release date was still listed as 2022 and that he had an "extensive criminal history" involving cocaine. Id. at 36. FCM Neeley stated that Father had not participated in any services with DCS because he had been incarcerated since April 2015. At the time of the arrest, DCS was working on getting Father's services in place, but it had not made any referrals for him. See id. at 33. However, FCM Neeley acknowledged that Father had completed eight sections of the cognitive-skills workbook while in jail and was about to graduate from Purposeful Incarceration.

[10] FCM Neeley emphasized that Purposeful Incarceration does not specifically address parenting skills. However, when asked about Father's parenting skills, FCM Neeley said that he had never observed Father with A.S. He admitted that all of the reports he had received about Father's parenting were positive: Father asks A.S. age-appropriate questions, asks DCS case workers about A.S.'s development and routine, and is attuned to A.S.'s needs during visits. FCM Neeley said, "[T]here [have] never been any concerns about his appropriateness with [A.S.], his discussions with her, um and that kind of stuff." Id. at 42. FCM Neeley also acknowledged that A.S. is affectionate toward Father during their visits, sitting in his lap while he reads to her.

[11] Throughout the duration of the CHINS and termination proceedings, A.S. has been placed with the same foster-care family. The home was pre-adoptive and DCS's plan was for A.S. to be adopted by the family should Father's parental rights be terminated. After the hearing, the trial court entered findings of fact and conclusions and terminated Father's parental rights to A.S.

[12] Father now appeals.

Discussion and Decision

[13] Father raises two issues on appeal. First, he claims that the trial court should have granted his motion to continue. Second, he argues that the evidence is insufficient to support the termination of his parental rights. Because we agree with Father that the trial court should have granted his continuance, we do not address his second argument or take a position on the merits of the decision to terminate his parental rights.

[14] Generally, the decision to grant or deny a motion to continue is within the sound discretion of the trial court, and we will reverse only for an abuse of discretion. In re J.E. , 45 N.E.3d 1243, 1246 (Ind. Ct. App. 2015), trans. denied . An abuse of discretion occurs when the trial court's conclusion is clearly against the logic and effect of the facts and circumstances before the court or the reasonable and probable deductions to be drawn therefrom. Id. When a motion to continue has been denied, an abuse of discretion will be found if the moving party has demonstrated good cause for granting the motion, but we will reverse the trial court's decision only if the moving party can show that he was prejudiced by the denial. Id.

[15] Father analogizes his situation to that of the father in Rowlett v. Vanderburgh County Office of Family and Children , 841 N.E.2d 615 (Ind. Ct. App. 2006), trans. denied . In Rowlett , the father was arrested and charged with dealing in methamphetamine two months after his children were adjudicated CHINS. The father was unable to participate in services with the Office of Family and Children (OFC) because of his incarceration, but he participated in "nearly 1,100 hours of individual and group services" directed at reunification with his children. 841 N.E.2d at 622. The OFC petitioned to terminate the father's parental rights while he was incarcerated. At a pre-trial conference in January 2005, the father informed the court that he would be released in June 2005 and asked that the termination hearing be set after his release. The court denied his request and set the hearing for April 2005, approximately six weeks before the father's release date. The father's parental rights were terminated.

[16] The father appealed and claimed that the trial court abused its discretion when it denied his motion for continuance. He argued that he should have been given the opportunity to engage in reunification services and establish himself within his community. The OFC, on the other hand, stated that the children had been removed from the father for over two years and needed permanency. The children had been placed with their maternal grandmother for the duration of the CHINS and termination proceedings, and the OFC's plan was for her to adopt the children if the father's rights were terminated.

[17] This Court held that good cause for granting the father's continuance existed because it would have granted him an opportunity to "participate in services offered by the OFC directed at reunifying him with his children upon his release from prison." Id. at 619. The OFC would have to wait only six weeks for the father to be released. We also held that the father was prejudiced by the decision because the trial court assessed his ability to care for his children "as of the date of the hearing he sought to have continued." Id. We went on to say that termination was "particularly harsh where Father, while incarcerated, participated in numerous services and programs ... which would be helpful to him in reaching his goal of reunification with his children." Id. Because the OFC's plan was for the children to be adopted by the maternal grandmother and they had been in her care since removal, we concluded that continuation of the termination hearing "would have little immediate effect upon the children." Id. We ultimately concluded that the trial court abused its discretion in denying the father's motion for continuance and that the hearing should have been reset "after Father was given a sufficient period following his release to demonstrate his willingness and ability to assume parental duties." Id. at 620.

[18] We agree that Father is situated similarly to the father in Rowlett . First, like the father in Rowlett , Father was on the verge of significant, favorable change in his incarceration status. He was twenty-four days shy of graduating from Purposeful Incarceration, which would result in a guaranteed sentence modification. Second, any additional delay in the termination proceedings would not negatively impact A.S. Similar to the children in Rowlett , A.S. has been in the same foster home since her removal, and DCS's plan was for her foster parents to adopt her if Father's parental rights were terminated. A.S. was also bonded with Father and was affectionate toward him, sitting in his lap when he read to her and blowing him kisses and waving goodbye. For these reasons, we conclude that good cause existed at the time of Father's motion and that the trial court should have continued the case at least long enough to see if Father graduated from Purposeful Incarceration and, if so, the extent to which Circuit Court 2 modified his sentence.

[19] Father has also shown that he was prejudiced by the denial of his motion. The denial allowed DCS to argue repeatedly, and the court to find, that Father would not be released from prison until 2022, even though everyone involved knew that there was a very good chance that Father would be released much sooner. Like the father in Rowlett , Father was judged as an incarcerated parent, rather than as a parent whose incarceration status was about to change. See id. at 619.

[20] DCS contends that Rowlett is distinguishable from this case for two reasons. First, it claims that "unlike in Rowlett , Father had the opportunity to participate in reunification services. Instead, Father chose criminal activity over the opportunity to engage in reunification services and parent [A.S.]." Appellee's Br. p. 16 (citations omitted). But Father had no more of an opportunity to engage in reunification services than the father in Rowlett . Both Father and the father in Rowlett were arrested two months after their CHINS adjudication hearings and remained incarcerated for the duration of their CHINS and termination proceedings. As we did in Rowlett , we credit Father for the efforts he has taken while incarcerated to better himself and reunify with A.S.; he completed multiple sections of a cognitive-skills workbook and was about to graduate from Purposeful Incarceration. DCS's argument is also flawed because Father did voluntarily engage in services before his arrest. Specifically, he completed a substance-abuse evaluation and began IOP. To the extent that he did not participate in additional services, FCM Neeley testified that, at the time of Father's April 2015 arrest, DCS had not yet set up any services for Father.

[21] DCS also emphasizes that the father in Rowlett had an imminent release date when his termination hearing was held, whereas Father's release date was approximately five years away. DCS acknowledges that Father would "likely receive a sentencing modification for completing Purposeful Incarceration" but contends that the extent of the modification was uncertain. Id. at 15 (emphasis added). Initially, we note that the modification of Father's sentence wasn't just "likely"; it had already been promised should Father graduate from Purposeful Incarceration. Circuit Court 2 explicitly "agree[d] to modify Defendant's sentence if he successfully complete[d] Purposeful Incarceration." Father's Ex. 1. And while we acknowledge that the extent of the expected modification was unknown, we do not find the distinction to be dispositive. Even though Father's anticipated release date was 2022 at the time of the hearing, it is undisputed that he was on track to graduate from Purposeful Incarceration in less than one month and that he would then receive a potentially significant modification of his sentence. Because of this, Circuit Court 7 should have continued the case long enough to see if Father completed Purposeful Incarceration and, if so, the extent of the sentence modification granted by Circuit Court 2. If the modification made Father's release date imminent, a Rowlett -style continuance would have been in order, giving Father the opportunity to engage with DCS and demonstrate his willingness and ability to parent A.S. For the foregoing reasons, we reverse the termination of Father's parental rights and remand for further proceedings.

[22] Reversed and remanded.

May, J., and Altice, J., concur.

Order

[1] Appellant, by counsel, filed a Motion to Publish Opinion.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellant's Motion to Publish Opinion is granted.
2. This Court's opinion heretofore handed down in this cause on April 18, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 5/7/2018.

[4] Vaidik, C.J., May, Altice, JJ., concur.

      A.S.'s mother consented to A.S. being adopted and is not a party to this appeal. Accordingly, we discuss only the facts relevant to Father's appeal.

      A review of the dockets in Case 397 and Case 1186 shows that Father did graduate from Purposeful Incarceration and that his sentence was modified. On October 10, 2017-thirty-five days after Father's continuance was denied-the DOC submitted a "Progress Report, Treatment Summary, and Release Recovery Plan" to Circuit Court 2. A sentence-modification hearing was held, and on December 6, the court found Father was eligible for Re-Entry Court and referred him to that program. The Re-Entry Court accepted Father's case and ordered that Father was to be released from prison, that he was to participate in the Community Transition Program, and that the remaining sentences in Cases 397 and 1186 be stayed. Father was released from prison on January 22, 2018. Father is expected to be released from the Community Transition Program on May 21, 2018, and is to continue participating in Re-Entry Court until January 2020.


author: CYPHER, J.

text:
    COMMONWEALTH v. Curtis COMBS.
    SJC-11724
    Supreme Judicial Court of Massachusetts, Hampden..
    Argued December 8, 2017 Decided July 5, 2018
    Cathryn A. Neaves, for the defendant.
    David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Gaziano, Lowy, & Cypher, JJ.
   CYPHER, J.

In September, 2011, a Hampden County grand jury returned four indictments charging the defendant, Curtis Combs, with murder in the first degree, G. L. c. 265, § 1 ; kidnapping, G. L. c. 265, § 26 ; armed robbery, G. L. c. 265, § 17 ; and assault by means of a dangerous weapon, G. L. c. 265, § 15A (b ). The Commonwealth alleged that the defendant either was the principal or acted as part of a joint venture with Demery "Manny" Williams to rob and murder William Jones. The defendant and Manny were tried separately, and we affirmed Manny's convictions of murder in the first degree, armed robbery, and assault and battery by means of a dangerous weapon. See Commonwealth v. Williams, 475 Mass. 705, 706, 60 N.E.3d 335 (2016). At the defendant's trial, the theory of defense was that he was not involved in killing the victim and had only assisted Manny in concealing the crime after the fact, by helping Manny dispose of the victim's body in Connecticut. The jury ultimately convicted the defendant of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty, as well as of assault and battery by means of a dangerous weapon.

The defendant appeals from the two convictions and from the denial of his motion for a new trial. He claims that (1) the evidence was insufficient to convict him of murder; (2) the jury should have been instructed on accessory after the fact, even though the defendant was not charged with being an accessory after the fact; (3) errors in the prosecutor's closing argument require a new trial; and that (4) we should exercise our power under G. L. c. 278, § 33E, to reduce the verdict of murder in the first degree or grant the defendant a new trial.

This case presents the exceedingly rare instance in which the factual question "[w]hether a criminal act occurred within the territorial boundaries of the Commonwealth, and thus whether the Commonwealth has jurisdiction over the [defendant,]" is legitimately in dispute. Commonwealth v. Gilbert, 366 Mass. 18, 28, 314 N.E.2d 111 (1974). Throughout trial, and as part of his motion for a required finding of not guilty, the defendant argued that there was insufficient evidence to prove beyond a reasonable doubt that the victim was killed in Massachusetts. The judge denied the motion, yet submitted the question of territorial jurisdiction to the jury. Upon our review of the evidence, and even after viewing that evidence in the light most favorable to the Commonwealth, we agree with the defendant that the location of the crimes-whether they occurred in Massachusetts or Connecticut (where the victim's body was found)-remains too speculative to sustain the jury's finding of guilt beyond a reasonable doubt. "[T]here can be no doubt that [our courts have] no power to try the defendant for crimes committed out of State." Commonwealth v. DiMarzo, 364 Mass. 669, 671, 308 N.E.2d 538 (1974). Lacking territorial jurisdiction over the prosecution, we are required to reverse the defendant's convictions.

Facts. We recite the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth, while reserving certain details for later discussion. At approximately 10:20 A.M. on January 22, 2010, Jones, the victim, picked up Manny from his place of work in Hartford, Connecticut. The victim was driving a white Saturn Outlook sport utility vehicle (SUV) that he had rented the previous day. Both men sold cocaine, and they had arranged a drug deal. The plan also involved the defendant, Curtis Combs, who Manny knew previously. Despite being on probation in Connecticut, which prohibited him from leaving that State, the defendant was staying at his girl friend's apartment in Springfield. The victim and Manny drove to the Springfield apartment, arriving sometime shortly before 11 A.M. The jury could reasonably infer that the victim was alive when they arrived at the Springfield apartment. Around this time, Gustavo Bautista returned home to the duplex that he owned on Florida Street in Springfield. Bautista lived in the apartment located on the right side of the house, and he rented the left-side apartment to the defendant's girl friend. Immediately upon returning home, Bautista heard the adjacent door of the left-side apartment open and close. He looked out the front window and saw the defendant in the front yard, signaling to Manny to drive the SUV over the grass on the side of the house and around to the back yard.

Bautista immediately went to the back of his house to see what was happening. He witnessed Manny step out of the vehicle and show the defendant something in the back seat. Bautista could not see what it was, or whether there was anyone else in the SUV (the windows were tinted), but both men appeared "excited." Bautista saw only the defendant and Manny, and did not know whether there was anyone else inside the left-side apartment at the time. At this point Manny noticed Bautista watching, and informed the defendant. Bautista asked the defendant what was happening. The defendant, who was acting "normal," said that his friend had come to pick up old furniture. Bautista asked the men to use the driveway next time, and then left the duplex, leaving the defendant and Manny behind the home with the SUV.

After spending approximately thirty minutes alone at the apartment, at around 11:40 A.M. , Manny and the defendant began driving back toward Hartford. It is not clear whether the victim was alive at this time. Manny traveled in the victim's SUV, presumably with the victim or the victim's body, while the defendant followed them in his mother's Pontiac Grand Prix automobile. Cellular telephone records show that the defendant and Manny exchanged two calls at 12:06 and 12:10 P.M. , and at this time both men were located in the Bloomfield, Connecticut, area.

At some point during the period beginning when the victim arrived in Springfield, and through the time that Manny and the defendant were in Bloomfield, the victim was strangled to death with a ligature. Manny and the defendant left the victim's body in the back seat of the SUV, parked in the parking lot of a Bloomfield retail store. Manny then got into the Grand Prix, and the defendant drove him back to work in Hartford, where he arrived approximately between 12:30 and 12:45 P.M. Once back, Manny showed his boss about $4,000 to $5,000 in cash, and said that he had just sold a "kilo," but that the sale had taken longer than expected because he had to show the buyer "how to cook up the cocaine."

The victim's body was discovered the following evening by members of the Bloomfield police department, lying face down across the back seat of the SUV, which was parked in the store's parking lot. Connecticut State police investigators processed the SUV for evidence; they took swabs to be used for deoxyribonucleic acid (DNA) testing, and collected dirt samples, fibers, and latent prints from the interior and exterior of the vehicle. DNA matching the defendant's profile was discovered on the slide control lever of the rear driver's side seat, used to move the seat forward and backward. Investigators also found a torn piece of white latex glove on the floor that revealed a mixed sample of DNA matching the profiles of Manny and the victim. In addition, investigators located dirt and debris on the floor near the rear passenger's side door.

The defendant gave multiple statements to police. In his first statement on February 2, 2010, the defendant denied knowing Manny or the victim, and said that he had not left Hartford because he was on probation and could not leave Connecticut. Later that evening he gave a second statement, in which he admitted that he had in fact been in Springfield. The defendant also acknowledged that he knew Manny from a Hartford barbershop. He told the police that Manny had visited him in Springfield, and had brought a friend-an unidentified African-American male-driving the SUV. The defendant said that he let this friend inside the apartment to use the bathroom. Then, according to the defendant, Manny and his friend got into the SUV and drove to a retail store in West Springfield. The defendant said that he followed them in the Grand Prix. According to the defendant, the three stayed at the retail store for twenty minutes, and then drove on the highway toward Hartford, stopping at two restaurants along the way. The defendant said that while they were leaving the second restaurant, Manny called him and asked for a ride, because Manny's friend was going elsewhere and Manny needed to return to work. The defendant then picked up Manny and drove him back to work in Hartford. Sufficiency of the evidence. At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty, arguing (in part) that there was insufficient evidence for a jury to conclude that the murder had occurred in Massachusetts. Although the defendant's motion was denied, the judge subsequently instructed the jurors that in order to find the defendant guilty and punishable in Massachusetts, they must find beyond a reasonable doubt that the defendant's "Massachusetts conduct ... led to the victim's death."

"It is elementary that it must be shown that jurisdiction lodged in the courts of Massachusetts before the defendant can be found guilty of the offence charged." Commonwealth v. Fleming, 360 Mass. 404, 406, 274 N.E.2d 809 (1971). See Vasquez, petitioner, 428 Mass. 842, 848, 705 N.E.2d 606 (1999) ("The general rule, accepted as 'axiomatic' by the courts in this country, is that a State may not prosecute an individual for a crime committed outside its boundaries"). It is our practice that where there is a genuine factual dispute as to whether a crime was committed within Massachusetts, as here, that issue is to be submitted to the jury in the form of an instruction. " 'Whether a criminal act occurred within the territorial boundaries of the Commonwealth, and thus whether the Commonwealth has jurisdiction over the individual charged with that act, is a question of fact to be settled by proof.' ... As such, it is an issue entrusted to the deliberative process of the jury." Commonwealth v. Travis, 408 Mass. 1, 8, 556 N.E.2d 378, quoting Gilbert, 366 Mass. at 28, 314 N.E.2d 111. See 1 W.R. LaFave, Substantive Criminal Law § 4.1(b), at 354-355 (3d ed. 2018) ("At least when the matter has been put into issue by the defendant, whether the prosecuting government actually has criminal jurisdiction over the conduct of the defendant is, under the prevailing view, a matter to be determined by the trier of fact" [footnote omitted] ). Contrast Commonwealth v. Jaynes, 55 Mass. App. Ct. 301, 308-310, 770 N.E.2d 483 (2002) (no jurisdictional instruction required where evidence made it "not reasonable nor possible to assume that the victim was not forcibly confined or murdered in Massachusetts"); Commonwealth v. Adelson, 40 Mass. App. Ct. 585, 589-590, 666 N.E.2d 167 (1996). Where territorial jurisdiction is a triable issue, the Commonwealth's burden of proof is the same as it is for the substantive elements of the crime(s) charged, that being proof beyond a reasonable doubt. See, e.g., DiMarzo, 364 Mass. at 672-673, 308 N.E.2d 538. And on appeal, we consider whether there was sufficient evidence for a finding beyond a reasonable doubt of territorial jurisdiction. Id.

In these circumstances, we treat territorial jurisdiction as if it is an element of the offense. Our review of the legal sufficiency of the evidence is made with specific reference to the substantive elements of the offense. See Jackson v. Virginia, 443 U.S. 307, 324 n.16, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). Our standard in Latimore is derived from the United States Supreme Court's decision in Jackson. See Latimore, supra. This is typically expressed as deference to the jury or fact finder's judgment regarding the sufficiency of the evidence when, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Id. at 677, 393 N.E.2d 370, quoting Jackson, supra at 319, 99 S.Ct. 2781.

Proof of an essential element of a crime may be based on reasonable inferences drawn from the evidence, but it may not be based on conjecture. See, e.g., Commonwealth v. Gonzalez, 475 Mass. 396, 407, 56 N.E.3d 1271 (2016). "[I]t is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt." Latimore, 378 Mass. at 677-678, 393 N.E.2d 370.

The Commonwealth's case against the defendant consisted for the most part of inferences drawn from circumstantial evidence. Of course, "evidence of a defendant's guilt may be primarily or entirely circumstantial." Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005), citing Corson v. Commonwealth, 428 Mass. 193, 197, 699 N.E.2d 814 (1998). Indeed, cases built entirely on circumstantial evidence are often strong. See, e.g., Commonwealth v. Fitzpatrick, 463 Mass. 581, 590-594, 977 N.E.2d 505 (2012). The inferences drawn from such circumstantial evidence "need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Fernandes, 478 Mass. 725, 739, 89 N.E.3d 1130 (2018), quoting Commonwealth v. Linton, 456 Mass. 534, 544, 924 N.E.2d 722 (2010). See Lao, supra, quoting Commonwealth v. Giang, 402 Mass. 604, 609, 524 N.E.2d 383 (1988) ("Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense"). Still, a conviction may not "rest upon the piling of inference upon inference or conjecture and speculation." Commonwealth v. Mandile, 403 Mass. 93, 94, 525 N.E.2d 1322 (1988). See Commonwealth v. Kelley, 359 Mass. 77, 88, 268 N.E.2d 132 (1971) ("no essential element of the crime may rest in surmise, conjecture, or guesswork").

The Commonwealth's theory of the case was that the victim was strangled inside the defendant's girl friend's apartment in Springfield. All of the victim's injuries in this case were, according to the testimony of the substitute medical examiner, consistent with the ligature strangulation that caused the victim's death. The examiner testified that it typically takes from four to five minutes to die in this manner. The jurisdictional question, therefore, is whether the Commonwealth submitted to the jury sufficient evidence of the defendant's strangulation in Springfield. Stated more formally, we must consider whether, viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found beyond a reasonable doubt that the victim was strangled in the Springfield apartment. Latimore, 378 Mass. at 677, 393 N.E.2d 370.

Viewing the evidence in the light most favorable to the Commonwealth, a rational juror could infer the following: the defendant was part of a plan that involved Manny, the victim, and a drug deal; the victim was alive when he arrived with Manny at the defendant's girl friend's Springfield apartment; the victim was alone at the apartment with Manny and the defendant for approximately thirty minutes; and while traveling from Springfield to Hartford, the defendant and Manny stopped briefly in Bloomfield, where they left the victim's body inside the SUV. In addition, the jury heard evidence that the defendant had initially lied to investigators about being in Springfield on the day of the killing. These facts do not resolve the essential question of where the victim was killed. Beyond the above facts, the Commonwealth cites two additional points-the positioning of the victim's body in the SUV, and the absence of dirt on the victim's shoes-to support the inference that the victim was killed in Springfield.

Regarding the first point-the positioning of the victim's body-the Commonwealth focuses on the testimony of the substitute medical examiner, who testified that in light of the size of the petechial hemorrhaging in the victim's eyes, he "might have been in the face down position" when strangled. The medical examiner testified further that the lividity pattern on the back of the victim's neck suggested that he was placed on his back after he died. In addition, the victim was found lying on his stomach in the SUV.

The Commonwealth contends that these facts support an inference that the victim was not killed in the SUV but, rather, was placed there only after being killed in Springfield. Critically, the Commonwealth did not elicit testimony from the substitute medical examiner as to how long it takes for a lividity pattern to form. It remains uncertain, then, for how long the victim may have been on his back before being placed on his stomach. Although these facts support an inference that the victim's body was moved in some manner at some point after he died, they do not establish where that occurred, let alone establish beyond a reasonable doubt that the victim was killed in Springfield. On this evidence, no rational trier of fact could have found beyond a reasonable doubt that the victim was strangled inside the Springfield apartment.

The second fact that the Commonwealth cites to support territorial jurisdiction-the absence of dirt on the victim's shoes-establishes even less. The victim's shoes had no dirt on them when the police discovered his body, but police found dirt on the floor of the backseat of the SUV. In addition, Bautista stated that the weather "wasn't that cold or anything for January," that "the temperature was very nice," and that there was no snow on the ground. During cross-examination of Bautista, defense counsel introduced a photograph of the back yard of the Springfield apartment, which showed a mix of green and brown patches. The Commonwealth suggests that a jury could infer from these facts that (1) the back yard of the Springfield apartment was muddy on the day of the killing, and (2) further-because there was mud on the floor of the SUV, but not on the victim's shoes-that the victim was carried out of the Springfield apartment by Manny and the defendant, whose muddy shoes left dirt on the floor of the SUV.

No rational juror could infer as much from these facts. No evidence was introduced regarding the actual temperature in Springfield on the day of the killing, or in the days leading up to it. In addition, two New Englanders might well disagree about what it means to be "not that cold" or "very nice" on a given day in January; even then, such testimony does not itself establish the condition of the ground that day. Asked whether the photograph introduced by the defense accurately depicted his back yard as it looked on January 22, 2010, Bautista responded that the photograph was "from autumn and back then it was winter." Moreover, the brown patches in the photograph appear to be grass, not dirt. And although a dirt sample was taken from the SUV, it is not clear whether it was ever sent for analysis; no dirt sample was ever taken from the back yard of the Springfield apartment, however, so as to compare it with the dirt found in the SUV. In short, the condition of the back yard, and the source of the dirt in the SUV, remain wholly speculative. This evidence similarly cannot serve as the foundation for a finding beyond a reasonable doubt that the victim was killed in Springfield.

The few cases in which this court has previously considered the sufficiency of the evidence for purposes of territorial jurisdiction contained stronger facts supportive of a finding beyond a reasonable doubt that the killing (or "other violence or injury")

occurred within the boundaries of the Commonwealth. In Commonwealth v. Lent, 420 Mass. 764, 765, 767, 652 N.E.2d 140 (1995), for instance, the body of a murdered twelve year old boy from Pittsfield was found tied to a tree near Ithaca, New York. Although the court acknowledged that the fatal strangling "occurred entirely in New York," it nonetheless upheld jurisdiction over the case in light of "evidence of [the defendant's] infliction of violence and injury on the victim in Massachusetts." Id. at 769-770, 652 N.E.2d 140. In that case, the defendant told police that that he had used a knife on his victim and attempted to rape him in the defendant's Massachusetts apartment before taking him to New York. Id. at 766-767, 770, 652 N.E.2d 140.

Similarly, in Travis, 408 Mass. at 8-9, 556 N.E.2d 378, the victim, whose body was eventually found in Rhode Island, was kidnapped in Massachusetts during a robbery of the video store where she worked; there was evidence that her hands were bound during the kidnapping, and a witness testified that while kidnapping her, the defendant had committed a battery. In addition, "there was evidence from which the jury could conclude that [the victim] did not die in the wooded lot where she was discovered." Id. at 9, 556 N.E.2d 378, citing DiMarzo, 364 Mass. at 672, 308 N.E.2d 538. The court thus concluded that "the evidence presented to the jury allowed them reasonably to conclude that the defendant had inflicted 'violence or injury' on [the victim] while she was within Massachusetts, and that this 'violence or injury' had led to [her] death." Travis, supra. See DiMarzo, supra (evidence sufficient to send territorial jurisdiction to jury where "there was ample evidence that the beatings which eventually led to the death of the victim took place in Massachusetts"; witness saw defendant place large duffel bag in motor vehicle on day of killing, at house in Massachusetts where victim resided with defendant; and "there was evidence that the victim did not die at the tree where her body was discovered").

No such evidence exists in this case to establish Massachusetts as the location of the killing. Investigators did not, for instance, search or obtain forensic evidence from the Springfield apartment. Nor is there any witness besides Bautista who testified as to what transpired in Springfield. In the absence of additional facts, the jury were left to guess whether the victim was killed in Springfield, as opposed to in Connecticut. See, e.g., Gonzalez, 475 Mass. at 412, 56 N.E.3d 1271, quoting Mandile, 403 Mass. at 94, 525 N.E.2d 1322 ("No[ ] conviction [may] rest upon the piling of inference upon inference or conjecture and speculation").

In light of this conclusion, we need not consider the other issues raised by the defendant. The defendant's convictions are reversed.

So ordered.

      The Commonwealth filed a nolle prosequi as to the kidnapping charge before trial.

      We refer to Demery "Manny" Williams as "Manny" to avoid confusion with the victim, William Jones.

      The defendant was not charged as an accessory after the fact.

      The judge sentenced the defendant to life imprisonment without the possibility of parole on the murder conviction, and refrained from imposing a separate sentence with respect to the conviction of assault and battery by means of a dangerous weapon, reasoning that it merged with the murder conviction.

      This opinion has no effect on our decision upholding Manny's convictions in Commonwealth v. Williams, 475 Mass. 705, 706, 60 N.E.3d 335 (2016). The coventurers were tried separately, and evidence relevant to territorial jurisdiction was introduced at Manny's trial that was not introduced in the defendant's trial. See note 21, infra.

      Manny sorted tomatoes at a processing plant for a produce company. The job required him to wear latex gloves for sanitary purposes.

      Although the exact nature of the coventurers' relationship is unclear, the defendant later told police that he knew Manny from a barbershop in Hartford. Cellular telephone (cell phone) evidence shows that Manny and the defendant exchanged several calls the night before and morning of January 22, 2010. In two of these exchanges, Manny called the defendant immediately before or after calling the victim, supporting an inference that the defendant was also involved in the drug deal. There is no evidence, however, that the defendant knew or exchanged calls with the victim, or that he possessed any motive to kill the victim.

      At 10:40 A.M. , Manny called the defendant, with Manny's cell phone connecting to a tower alongside Interstate Route 91 somewhere between Hartford, Connecticut, and Springfield. Manny called the defendant again at 10:48 a.m. , at which point both Manny's and the defendant's cell phones connected to towers in the Springfield area.

      The defense theory at trial was that Manny had killed the victim before leaving Connecticut, and arrived at the defendant's girl friend's apartment with the body. Viewing the evidence in the light most favorable to the Commonwealth, however, the jury could infer that the victim was still alive when he and Manny arrived in Springfield. Testimony established that the victim was driving a white Saturn Outlook sport utility vehicle (SUV) when he and Manny left Hartford. In addition, the defendant told police that Manny arrived at the apartment with a friend, and that the defendant had let this friend into the apartment to use the bathroom.

      Although Bautista did not specifically identify Manny as the driver, the jury could reasonably infer that Manny was driving the SUV at this time. The defendant later told police that when Manny and his friend arrived, the defendant let the friend go inside the apartment to use the bathroom. From this, the jury could infer that when Bautista heard the door of the left-side apartment open and close, he heard the victim entering the defendant's girl friend's apartment. This would leave Manny as the driver of the SUV.

      Bautista testified that his exchange with the defendant in the backyard lasted from four to five minutes.

      A Massachusetts State trooper testified that the drive from downtown Springfield to the police department in Bloomfield, Connecticut, takes "[p]robably [thirty] minutes."

      The defendant gave a third statement to members of the Massachusetts State police on July 27, 2011. Earlier that month, a State trooper was assigned to help Connecticut State police in the investigation of the victim's death. In this statement, the defendant repeated his explanation that Manny had brought a friend to visit him in Springfield, and that he had let Manny's friend inside the apartment to use the bathroom.

      The defendant also challenged the sufficiency of the evidence that there was a joint venture between the defendant and Manny, and that the defendant had committed assault and battery or armed robbery.

      The judge read to the jury the language of G. L. c. 277, § 62, which confers on the Commonwealth jurisdiction to hear certain cases of homicide where it is uncertain whether the homicide occurred within Massachusetts. It states in relevant part: "If a mortal wound is given, or if other violence or injury is inflicted ... in any county of the commonwealth, by means whereof death ensues without the commonwealth, the homicide may be prosecuted and punished in the county where the act was committed." We have interpreted the statute to require that the Commonwealth establish that "the death [was] one that would not have occurred but for the violence or injury that was inflicted in Massachusetts." Commonwealth v. Lent, 420 Mass. 764, 768-769, 652 N.E.2d 140 (1995), citing Commonwealth v. Travis, 408 Mass. 1, 8-10, 556 N.E.2d 378 (1990). The judge further instructed the jury that with respect to the additional charges of armed robbery and assault by means of a dangerous weapon, "the Commonwealth must prove that the entire crime occurred within Massachusetts ... beyond a reasonable doubt."

      Although the trial transcript reads "forty minutes, forty-five minutes," this appears to be a typographical error; the prosecutor argued in closing that it took "four minutes" for the victim to die.

      In opposing the defendant's motion for a required finding of not guilty, the Commonwealth argued that "based on telephone records, map and the main contact at the time the victim was picked up in Connecticut, brought down to Massachusetts, the [d]efendant's statements that said, [d]efendant's statements say brought a gun with him, and his wife brought him in the house, there were no phone calls during that period of time .... [T]here was contact between them going up to Massachusetts, that this [d]efendant's DNA, the form of [Manny's] DNA, the victim's shoes, shows there is a lot of evidence that would show that he went into the house and was carried out and put, stuffed in an SUV, that the death occurred in Massachusetts" (emphasis added). The Commonwealth has not provided us a transcript reference showing that the jury heard that the defendant had a gun or that Manny had brought a gun with him, and we have not found any such evidence in the record.

      The substitute medical examiner testified that bruising on the victim's neck "could be part of the lividity pattern." As for how a lividity pattern forms, she explained: "After death where the heart stops circulating, the red blood cells will be pulled right down to its lowest position, so if you were lying on your back, the red blood cells would go to the back of your body and cause a pinkish reddish discoloration."

      Although the substitute medical examiner testified that it would have taken from four to five minutes for the victim to die, she did not offer an estimation as to when the victim died or for how long the victim had been dead. Contrast Commonwealth v. DiMarzo, 364 Mass. 669, 672, 308 N.E.2d 538 (1974) ("A medical examiner testified at length and placed the time of death as being within seventy-two hours of the time of the autopsy ..."). The SUV's windows were tinted, and it is not clear precisely how long Manny and the defendant were in Bloomfield. Cell phone records show that Manny and the defendant were in Bloomfield by 12:06 p.m. ; Manny's supervisor testified that Manny returned to work "around 12:30 to 12:45" p.m. The victim's wife estimated that the drive from her home in Hartford to the Bloomfield retail store where the victim's body was found takes "[a]bout 10, 15 minutes."

      The Commonwealth's witnesses characterized the material found on the floor of the SUV solely as "dirt," not "mud."

      As noted, Manny was also charged with murder in the first degree for killing the victim, and this court affirmed Manny's conviction. See Williams, 475 Mass. at 723, 60 N.E.3d 335. Jurisdiction was not an issue in that case, however, as the Commonwealth had introduced Manny's statements to the police describing, in incriminating fashion, his version of events at the Springfield apartment on January 22, 2010. Id. at 708, 60 N.E.3d 335. The Commonwealth did not seek to introduce Manny's statements at the defendant's trial. See generally Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

      Our conclusion that we lack territorial jurisdiction with respect to the charge of murder in the first degree applies equally to the lesser included offense of assault and battery by means of a dangerous weapon.