text:
    COMMONWEALTH v. Andrew E. PEARSON.
    18-P-504
    Appeals Court of Massachusetts.
    Entered: November 20, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Andrew E. Pearson, appeals from his conviction of operating a motor vehicle while under the influence of alcohol. He argues that there was insufficient evidence to find him guilty, that the prosecutor's closing argument was improper, and that the judge erred in denying his request for a missing witness instruction. We affirm.

1. Sufficiency. The defendant claims that the evidence presented at trial did not warrant a finding that he was impaired by alcohol, and was thus insufficient to find him guilty. Though the defendant did not move for a required finding of not guilty, "findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice ... [and a]ccordingly, we review the sufficiency of evidence issues." Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986). We consider " 'whether, 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)." Commonwealth v. Latimore, 378 Mass. 671, 677, (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

The Commonwealth need not produce direct evidence that a defendant was impaired by the use of alcohol when driving a vehicle. See Commonwealth v. Hilton, 398 Mass. 63, 66-67 (1986). Here, there was ample circumstantial evidence to support the jury's finding that the defendant was impaired. The defendant had a strong odor of alcohol on his breath at the time of his arrest and had admitted to having "a couple" of drinks. While the defendant was attempting to perform the second of two field sobriety tests, the officer stopped the test "[f]or [the defendant's] safety." Further, about two feet of the defendant's parked car was in the travel lane of a road where it was uncommon for cars to be parked. See id. at 68 ("manner in which the automobile was parked ... was evidence that it may have been driven by a driver under the influence of alcohol"). Finally, the defendant's statement, made after he was advised of his Miranda rights, that "there was nothing that he could do, that he had been caught," permitted an inference of the defendant's consciousness of guilt. While not conclusive, that statement was sufficient in combination with the other evidence in the case to permit a rational trier of fact to find that the defendant was impaired. See Commonwealth v. Geisler, 14 Mass. App. Ct. 268, 273-274 (1982).

2. Prosecutor's closing argument. The defendant claims that the prosecutor in his closing argument misstated the evidence and included facts not in evidence. We evaluate statements made during closing argument "in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). Where, as here, a defendant objects to statements in the Commonwealth's closing argument, we review for any prejudicial error. See Commonwealth v. Rosario, 430 Mass. 505, 515 (1999). We discern no error.

The defendant first argues that the prosecutor discussed facts not in evidence when he stated to the jury that "what [the sole testifying officer] was trying to tell you was that he was concerned that the defendant might slip or fall in trying that test again" and that "the defendant did poorly on that [test]." According to the officer's testimony, during the test in question, a one-legged stand, the defendant was unable to keep his hands by his sides as directed or his second foot at the proper height, despite being reminded "several times" of the parameters of the test. The officer terminated the test "[f]or [the defendant's] safety." Given this testimony, it was reasonable for the prosecutor to argue that the defendant had performed poorly on the test, and that the officer terminated the test based on his concern that the defendant might have slipped or fallen if it were continued. Indeed, it would be difficult to construe the officer's statement another way. "Counsel may ... zealously argue in favor of ... inferences favorable to his ... case [and those] inferences ... need not be necessary, or inescapable; they only need be reasonable and possible" (citation omitted). Commonwealth v. Rakes, 478 Mass. 22, 45 (2017).

The defendant next argues that the prosecutor misstated the evidence in arguing that the location in which the defendant chose to park his car was "an example of poor judgment," and that the defendant had other options for where to park the car. To the contrary, the Commonwealth had presented evidence that the defendant's car was parked in a fog lane, but that it extended approximately two feet into the travel lane. The officer testified that parking in this location was uncommon and so concerning that when he observed it, he turned his police cruiser around to perform a "wellbeing" check on the occupants of the car. The officer indicated that there was a side street the defendant could have pulled onto and a grass yard next to where the defendant had parked. The prosecutor's statements were accordingly supported by the evidence and constituted proper argument. There was no error.

3. Missing witness instruction. The defendant claims that the judge erred in not giving a missing witness instruction at the defendant's request, based on the Commonwealth's failure to call the defendant's passenger to testify. "A missing witness instruction is appropriate when a party 'has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,' and the party, without explanation, fails to call the person as a witness." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), quoting Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991).

The judge properly refused the defendant's request. Generally, "where a witness is equally available to both sides of a dispute, no inference should be drawn against either side for failing to call the witness." Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992), quoting Commonwealth v. Cobb, 397 Mass. 105, 108 (1986). "The instruction should be provided 'only in clear cases, and with caution.' " Commonwealth v. Williams, 475 Mass. 705, 721 (2016), quoting Saletino, supra at 668. Here, the defendant had indicated to the officer that his passenger was a friend of his. The defendant has provided no support for the proposition that this individual was not equally available to both parties. Accordingly, there was no error.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Preston O. JACKSON.
    18-P-531
    Appeals Court of Massachusetts.
    Entered: November 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This is an appeal by the defendant, Preston O. Jackson, from his November 2, 2017, resentencing after his plea of guilty in the Superior Court to a charge of armed robbery (indictment 99113). He pleaded guilty to this and nine other charges on May 14, 1992. He was sentenced forthwith to concurrent terms of not less than twenty nor more than twenty-eight years in State prison on the armed robbery indictments and a concurrent term of not less than eighteen nor more than twenty years in State prison on an armed assault with intent to rob indictment. On May 14, 2013, in an unpublished opinion under our rule 1:28, we vacated so much of the order by a Superior Court judge on the defendant's third motion for a new trial as denied his motion to withdraw his guilty plea to that portion of indictment 99113 which charged "being armed with a dangerous weapon," and directed that a new order should enter that the defendant was guilty of so much of the indictment as charged the lesser included offense of unarmed robbery, and remanded the case to the Superior Court for resentencing. "In all other respects," however, we affirmed the order denying the defendant's third motion for a new trial. See Commonwealth v. Jackson, 83 Mass. App. Ct. 1130 (2013). As a result, on November 2, 2017, the defendant was resentenced by the Superior Court on indictment 99113, now charging unarmed robbery, to a term of not less than twenty nor more than twenty-eight years in State prison, said sentence to be served concurrently with the 1992 sentence imposed on indictment 99105 (armed robbery), and said sentence was "deemed served." In effect, the judge imposed the same sentence as had been imposed when the defendant pleaded guilty in 1992 and ordered that the record reflect that the sentence had been served.

The defendant's first argument on appeal is a restatement of an argument previously rejected by the Superior Court and by a panel of this court. See note 2, supra. Namely, the defendant claims that he is entitled to credit for the years he served on indictment 99113 prior to his resentencing on that indictment. Under the doctrine of direct estoppel, the defendant is not entitled to judicial review of this claim. See Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005). Alternatively, we agree with the Commonwealth that the defendant's argument is contrary to the policy against "banking time" as explained in Commonwealth v. Holmes, 469 Mass. 1010, 1012 (2014).

The defendant's second argument is similarly unavailing. The defendant was not placed in jeopardy a second time in violation of both common law and constitutional principles when he was resentenced on indictment 99113. The resentencing occurred because the defendant sought and obtained a favorable ruling in his third motion for a new trial, and it did not result in the imposition of any additional punishment as the sentence that was imposed was deemed served. See Commonwealth v. Scott, 86 Mass. App. Ct. 812, 815-816 (2015), and cases cited.

To the extent that the defendant raises other issues here, we have considered them and find them to be without merit.

Resentencing judgment on indictment 99113 affirmed.

      At the time of his plea, the defendant was on parole in cases arising from his 1987 pleas of guilty to numerous indictments charging him with armed robbery and armed assault with the intent to rob, and was on probation in a separate case involving another armed robbery.

      The defendant also pleaded guilty in January, 2010, to ten other armed robbery charges committed in 2008 and 2009 following his release from incarceration on the sentences imposed in 1992. The defendant was sentenced to concurrent terms of not less than thirteen years nor more than eighteen years in State prison. The defendant unsuccessfully challenged those pleas and sentences in 2015 by filing a motion to vacate his 2010 pleas of guilty based in part on our decision to vacate a portion of the judgment on indictment 99113. After relief was denied by a judge in the Superior Court, the defendant appealed and sought relief here. In an unpublished decision, a panel of this court affirmed the order denying the defendant's motion to vacate his 2010 guilty pleas, noting, in part, that the defendant was not entitled to any credit for the time he served on indictment 99113 against the sentences imposed in 2010. See Commonwealth v. Jackson, 92 Mass. App. Ct. 1115 (2017).


text:
    John DOE, Sex Offender Registry Board No. 445157 v. SEX OFFENDER REGISTRY BOARD.
    17-P-1175
    Appeals Court of Massachusetts.
    Entered: November 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, John Doe, appeals from a Superior Court judgment, affirming the Sex Offender Registry Board's (SORB's) classification of Doe as a level two sex offender. As set forth infra, Doe challenges his classification on multiple grounds. We affirm.

Background. In October of 2013, Doe pleaded guilty to three counts of indecent assault and battery on a child under the age of fourteen, stemming from sexual offenses he committed against his then ten year old stepson (victim no. 1) starting in 2006, and against his then twelve year old niece (victim no. 2) in 2010 or 2011. Victim no. 1 reported that Doe, who was fifty-nine years old at the time the abuse began, touched victim No. 1's penis on numerous occasions and had the victim touch Doe's penis. Doe admitted to sexually assaulting victim no. 1 on twelve separate occasions. Victim no. 1 reported the sexual abuse in 2011.

In 2010 or 2011 (several years after the sexual offenses against victim no. 1), Doe touched victim no. 2's breasts and vagina, and attempted to have her touch his "privates," but she refused. Doe was about sixty-three years old at the time. During an investigation by the Department of Children and Families (DCF), Doe admitted touching victim no. 2's legs, but claimed it was not sexual.

Doe was sentenced on two counts to concurrent terms of two and one-half years in a house of correction, with twelve months to serve and the balance suspended. On the third count, he received two years of probation to be served after his release from incarceration.

In 2014, SORB notified Doe that it recommended that he register as a level three sex offender pursuant to G. L. c. 6, §§ 178C - 178Q. Doe had an initial hearing in June 2014; however, while Doe's matter was pending, the Supreme Judicial Court held in Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 314 (2015), that "sex offender risk classifications must be established by clear and convincing evidence," rather than the previously applied preponderance of the evidence standard of review. A second hearing on Doe's classification was conducted in 2016, employing the new standard of proof. Following the hearing, the examiner concluded that Doe posed a moderate risk of reoffending and a moderate danger to society, and that Doe was appropriately classified as a level two sex offender.

As required by the regulations, see 803 Code Mass. Regs. § 1.33 (2016), the examiner considered the statutory factors applicable to Doe's classification. The examiner considered several high risk factors, including that Doe demonstrated repetitive and compulsive behavior, he was an adult offender who offended against a child victim, and he offended against both male and female victims. The examiner additionally considered, as a risk elevating factor, Doe's violation of a condition of his pretrial probation by going to victim no. 1's home in violation of a no-contact order.

The examiner considered several risk mitigating factors, including Doe's probation supervision, his advanced age, his participation in sex offender treatment, his support system, as well as his stability in the community following his release from incarceration. With regard to Doe's advanced age, as discussed in more detail infra, the examiner did not provide full weight to this mitigating factor because Doe committed his first offense at the age of fifty-nine and his second offense at the age of sixty-three.

In addition, the examiner considered the testimony of Doe's expert, Dr. Joseph J. Plaud, who opined that Doe was at an "extremely low risk to reoffend." The examiner did not adopt Dr. Plaud's assessment, explaining that Dr. Plaud did not consider each of SORB's regulatory risk factors.

As set forth supra, the Superior Court judge, on a motion for judgment on the pleadings, affirmed SORB's decision. This appeal followed.

Discussion. A reviewing court may modify or set aside an agency's decision only if it was "(a ) [i]n violation of constitutional provisions; or (b ) [i]n excess of statutory authority or jurisdiction of the agency; or (c ) [b]ased upon an error of law; or (d ) [m]ade upon unlawful procedure; or (e ) [u]nsupported by substantial evidence; or (f ) [u]nwarranted by facts found by the court on the record ... ; or (g ) [a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." G. L. c. 30A, § 14 (7). "In conducting our review, we 'give due weight to the experience, technical competence, and specialized knowledge' of the board." Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 615 (2010), quoting G. L. c. 30A, § 14 (7). Here, Doe contends that the examiner's decision was not supported by substantial evidence and was arbitrary or capricious because the examiner (1) rejected Doe's expert's assessment of Doe's risk, (2) failed to give full mitigating weight to Doe's advanced age, and (3) gave full weight to Doe's repetitive and compulsive behavior even though Doe was not subject to legal intervention between his sexual assaults on the two victims.

Expert testimony. With regard to Doe's expert's risk assessment, the law is clear that "[t]he opinion of a witness testifying on behalf of a sex offender need not be accepted by the hearing examiner even where the board does not present any contrary expert testimony" (citation omitted). Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. 102, 112 (2014). Here, the examiner appropriately considered Dr. Plaud's opinion as informative, but not binding. Dr. Plaud failed to consider some of the high risk factors that the examiner concluded warranted a classification of Doe as posing both a moderate risk to reoffend and a moderate degree of dangerousness. See Doe, Sex Offender Registry Bd. No. 3844 v. Sex Offender Registry Bd., 447 Mass. 768, 777-778 (2006).

Moreover, unlike the examiner, see infra, Dr. Plaud did not consider the effect of Doe's advanced age at the time of the underlying sexual offenses in connection with the assessment. Dr. Plaud testified that for offenders older than the age of sixty, the recidivism rate was "dramatically low" and would be statistically below three percent. The examiner reasonably found that Dr. Plaud failed adequately to reconcile the apparent inconsistency between his opinion that Doe presented a low risk and the fact that Doe committed his first set of sexual offenses at an age when Dr. Plaud's statistics suggest his risk of reoffending was extremely low.

Furthermore, Dr. Plaud's opinion relied on his conclusion that the high risk factor of repetitive and compulsive behavior did not apply to Doe because Doe had not been identified and sanctioned in the time period between his sexual offenses against victim no. 1 and his sexual offenses against victim no. 2. In contrast, the regulations do not limit this high risk factor to situations where the offender is subjected to legal intervention between offenses or victims, though increased weight may be given to this factor in such circumstances. See 803 Code Mass. Regs. § 1.33. On this record, the examiner's decision not to adopt Dr. Plaud's opinion was not arbitrary or capricious.

Advanced age. Doe next contends that the examiner should have given full weight to the fact that Doe was almost seventy years old at the time of the hearing, relying on several scientific articles stating, and his expert testimony, that the risk of reoffense is reduced substantially as one ages. As discussed supra, the examiner gave some mitigating weight to Doe's age, but found that Doe's age did not have a significant mitigating weight because his offenses occurred when he was aged fifty-nine and sixty-three, at a time when typically sex offenders are substantially less likely to reoffend.

The regulatory guidelines specify that advanced age should not be applied uniformly, rather, that advanced age "should be given less weight when an offender continues to demonstrate an active sex drive or general criminality." 830 Code Mass. Regs. § 1.33(30)(a). On this record, we cannot say that it was arbitrary and capricious for the examiner to give some, but not full weight to this factor. See Doe, Sex Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd., 470 Mass. at 109-110.

Repetitive and compulsive behavior. Doe also maintains that the examiner erred in applying the repetitive and compulsive behavior factor because there was no legal intervention between the time Doe sexually assaulted victim no. 1 and the time Doe sexually assaulted victim no. 2. The regulations provide that, while additional weight should be given to this factor when there has been legal intervention between sexual offenses, it is nevertheless a relevant high risk indicator even in the absence of legal intervention so long as an offender "engages in two or more separate episodes of sexual misconduct." 803 Code Mass. Regs. § 1.33(2)(a). Here, Doe engaged in multiple episodes of sexual conduct separated by both time and victim. Specifically, he sexually assaulted victim no. 2 approximately four years after sexually assaulting victim no. 1. In these circumstances, the examiner did not abuse his discretion in giving full weight to this factor.

Judgment affirmed.

      Doe was seventy years old at the time of the hearing.

      Doe also submitted a report from Dr. John F. Cusack. However, because Dr. Cusack did not testify at the hearing, the examiner did not consider Dr. Cusack's ultimate risk opinion.

      Doe bears the burden of proving that one of these conditions has been satisfied. See Coe v. Sex Offender Registry Bd., 442 Mass. 250, 258 (2004).

      Furthermore, in articles provided by Doe, sex offenders released after the age of sixty showed low recidivism rates. For example, one article states that the recidivism rate for sex offenders released after the age of sixty was 3.8 per cent. Another article states the recidivism rate for sex offenders older than the age of sixty was two per cent.

      The issue whether his sexual offenses against victim no. 1 and victim no. 2 were compulsive in addition to being repetitive was not raised by Doe and therefore we do not reach it.

      In light of the foregoing, Doe's argument that SORB did not establish by clear and convincing evidence his level two classification (which relies on his contentions regarding his expert, advanced age, and lack of legal intervention) is unavailing.


text:
    GUARDIANSHIP OF JAYCE.
    17-P-729
    Appeals Court of Massachusetts.
    Entered: November 28, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   On December 13, 2016, a judge of the Probate and Family Court denied a petition filed by the mother pursuant to G. L. c. 190B, § 5-212, to remove the paternal grandmother as the guardian of the mother's son, Jayce. On appeal, the mother contends that (1) the judge improperly shifted the burden of proof from the guardian to the mother to prove her current fitness; and (2) the guardian did not prove by clear and convincing evidence that the mother is currently unfit to have custody of Jayce. Because we conclude that the judge may have improperly shifted the burden of proof on the removal petition to the mother, a fundamental issue that we cannot definitively ascertain based on the record before us, we vacate the judgment and remand the matter for further proceedings consistent with this memorandum and order.

1. Background. We summarize the relevant facts and procedural history from the judge's findings, supplemented by additional undisputed facts from the record. The mother gave birth to Jayce in March of 2006. Shortly thereafter, her relationship with Jayce's father ended due to domestic violence, and the mother moved numerous times over the next five years before returning to the home where she had been raised. The father has not been involved in Jayce's life in any appreciable manner, and he was incarcerated during the pendency of these guardianship proceedings.

Jayce is a severely disabled child who suffers from congenital blindness, hypotonia, and global developmental delays. Shortly after his birth, the mother enrolled Jayce in early intervention services, but they were later discontinued because of "excessive absences." Records from the office of Jayce's pediatrician indicated that the mother canceled multiple appointments for her son between June of 2006 and July of 2009. Similarly, although Jayce received special education services from the Schwartz Center for Children from April of 2009 until August of 2011, the mother was unable to ensure that Jayce arrived on time, if at all, for his program, which negatively affected his progress and ability to transition to a school environment.

The mother, an unemployed college graduate who has been married five times and has three adult children, has a history of involvement with the Department of Children and Families (DCF). The mother has been diagnosed with attention deficit hyperactivity disorder, which causes her to have problems with concentration, organization, impulsiveness, and the completion of tasks.

On June 10, 2011, the mother was arrested and charged with drug trafficking following the execution of a search warrant at her residence. At the time of the arrest, Jayce was at school, and then he stayed with his paternal grandmother until the mother was arraigned. In 2007, the paternal grandmother had retired to help care for Jayce on a full-time basis. Jayce periodically stayed overnight with the paternal grandmother, she cared for him when the mother went away on vacation and on evenings when the mother worked, and she took him to Florida each year for approximately one month. In addition, the paternal grandmother was extensively involved with Jayce's medical care, and she played an integral role in the development of his special education plan.

On June 15, 2011, due to the mother's arrest and the father's incarceration, the paternal grandmother filed a petition in the Probate and Family Court to be appointed Jayce's temporary guardian. The petition was granted and later extended. Around the same time, DCF supported another report of neglect against the mother based on her arrest. On July 27, 2011, while out on bail, the mother was arrested again and charged with possession with intent to distribute a class B controlled substance. She was detained for sixty days, but she did not see Jayce until November, at which point the mother agreed to the appointment of the paternal grandmother as permanent guardian of Jayce.

A judge issued a decree and order on November 14, 2011, appointing the paternal grandmother as Jayce's permanent guardian, and granting the mother supervised weekly parenting time and daily telephone contact. Because the mother consented to the petition, no finding was made that she was unfit. For two years, the maternal grandmother supervised the mother's parenting time with Jayce at the guardian's home. On many occasions, the mother was either late for her visits or she failed to appear, and the mother was confrontational with and verbally abusive to the guardian.

On August 1, 2013, the mother filed a petition for removal of the guardian pursuant to G. L. c. 190B, § 5-212, on the ground that the mother was not unfit to care for Jayce. The judge appointed a guardian ad litem (GAL) to evaluate the mother's fitness and the continuing need for a guardianship. The parties then stipulated that the guardian would keep the mother informed of all educational meetings, extracurricular activities, and medical appointments for Jayce, which the mother was entitled to attend. The mother's motion for expanded visitation with Jayce was denied pending the report of the GAL. On June 12, 2014, the GAL filed her report in which she concluded that the mother was unfit to regain custody of Jayce, and that the guardianship should continue.

The mother's relationship with the guardian continued to deteriorate. When the maternal grandmother eventually refused to supervise the mother's visits with Jayce because of her inappropriate behavior, parenting time was moved to a visitation center. Although the mother frequently arrived late, she was prepared for the visits, she displayed appropriate behavior when interacting with Jayce, and he reacted positively to her presence. At the same time, the mother was heard making critical comments about the guardian who, in turn, was heard making disparaging remarks about the mother. In August of 2014, the mother stopped her parenting time with Jayce, and, apart from a few occasions, she did not have any regular contact with him for nearly two years.

Beginning in 2015, the mother filed three complaints with DCF, alleging that the guardian was neglecting Jayce. Investigators with DCF determined that the allegations were unsupported and that the guardian was providing excellent care for Jayce. During the course of the investigation, Jayce's elementary school teacher reported that the mother had attended only one meeting about Jayce's individualized education plan, and that she had been so disruptive that security almost needed to intervene.

In January of 2016, the mother was hospitalized for several days following an overdose of Advil. She attributed the overdose to a breakdown she experienced after reviewing Jayce's medical records, which indicated that he was experiencing "significant distress."

A five-day trial was held on the mother's petition for removal of the guardian between May and August, 2016. The mother, the guardian, and Jayce were each represented by counsel. Testimony was given by the mother, her fiancé, the guardian, the GAL, and a visitation center supervisor. On December 13, 2016, the judge denied the mother's removal petition. The judge concluded that the guardian had proved by clear and convincing evidence that the mother is currently unfit to parent Jayce, a particularly vulnerable child, and that termination of the guardianship would not be in his best interest. The judge acknowledged that the mother poses no physical threat to Jayce and that she clearly loves him. Nonetheless, the judge stated that the mother, who had experienced significant instability in her own life, had demonstrated an inability to meet the extensive medical and educational needs of Jayce, had gone for lengthy periods of time without seeing him, and had created conflict with those individuals who were caring for and providing services to Jayce. The judge also stated that the mother had not shown any understanding of Jayce's bond with the guardian and essentially sought to all but sever it. For these reasons, and the fact that the paternal grandmother had provided a stable and structured environment for Jayce over many years, the judge concluded that continuation of the guardianship was appropriate. The present appeal ensued.

2. Discussion. The mother contends that although the judge correctly recognized that the guardian had the burden of proving by clear and convincing evidence that the mother was currently unfit to have custody of Jayce, the judge nonetheless shifted the burden of proof onto the mother. In support of her argument, the mother relies on two aspects of the judge's decision concerning the mother's fitness. First, the judge stated that "[t]here was no expert testimony offered by [the m]other as to the potential impact on the child of a change in custody to [the m]other." Second, the judge stated that the mother's "ability to be consistent and to follow through has never been demonstrated by [the m]other in any meaningful way." In the mother's view, the judge based her decision to deny the removal petition on the mother's failure to establish her own fitness to have custody of Jayce. The mother argues that, given this improper burden shifting, the judgment must be reversed.

As a preliminary matter, counsel for Jayce asserts that because the mother did not raise her improper burden-shifting argument below, the issue has been waived. We disagree. Generally speaking, we decline to address issues on appeal that were not properly raised in the trial court. See Adoption of Leland, 65 Mass. App. Ct. 580, 588 (2006). Here, the mother had no reason to raise her burden-shifting argument in the Probate and Family Court because the judge articulated the correct burden of proof on a petition for removal of a guardian. It was not until the judge released her decision that the issue arose, prompting the mother to challenge the purported error on appeal. The mother was not required to first file a motion for a new trial as counsel for Jayce seems to suggest. See In-Towne Restaurant Corp. v. Aetna Cas. & Sur. Co., 9 Mass. App. Ct. 534, 545 (1980) ("A motion for a new trial is not to be used as a 'supplement to appellate opportunities' to raise issues which could have been but were not raised at the original trial" [citation omitted] ).

Turning to the mother's argument, on a petition for removal of a guardian, it is the burden of the guardian to prove by clear and convincing evidence that the petitioning parent is unfit, and that the guardianship should continue in the best interest of the child. See Guardianship of Kelvin, 94 Mass. App. Ct. 448, 453-454 (2018). Because here the mother consented to the guardian's appointment, she does not have the burden of producing some credible evidence of a change in circumstances such that the child may no longer be in need of a guardian. Cf. id. Rather, the burden is on the guardian to prove, by clear and convincing evidence, that the mother is unfit and, therefore, the guardianship should remain in place. Id. See Custody of a Minor, 389 Mass. 755, 765 (1983) (unfitness must be shown by clear and convincing evidence to justify removal of child from parent's custody); Kauch, petitioners, 358 Mass. 327, 330 (1970) (parent is not to be deprived of custody of child absent finding of unfitness); Guardianship of Estelle, 70 Mass. App. Ct. 575, 578 (2007) ; Adoption of Lorna, 46 Mass. App. Ct. 134, 139 (1999) (burden to prove current fitness in proceeding to terminate parental rights is "never" on parent).

Parental unfitness "means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child's [guardian]" (citation omitted). Care & Protection of Yetta, 84 Mass. App. Ct. 691, 695 (2014). It means "grievous shortcomings or handicaps" that put the child's welfare "much at hazard." Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). See Care & Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998) (judge must determine whether parent would place child at "serious risk of peril from abuse, neglect, or other" harmful activity). "Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). It is well established that the specialized needs of a particular child coupled with parental deficiencies may clearly establish parental unfitness. See Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 389 Mass. 793, 799-800 (1983) ; Care & Protection of Thomasina, 75 Mass. App. Ct. 563, 576 (2009).

As relevant to these proceedings, the bond between a child and a guardian, while not dispositive, is a factor to be weighed in determining whether to return custody to the biological parent. See Guardianship of Estelle, 70 Mass. App. Ct. at 581-582. A judge must consider, among other factors, the effect of a transfer of custody on the child's welfare, and the parent's capacity to handle any trauma that may accompany the child's separation from the guardian. See id. at 582. Expert testimony may be necessary, but it is not required in all cases. See Adoption of Daniel, 58 Mass. App. Ct. 195, 203 (2003).

In her decision, the judge here correctly stated that the burden of proof was on the guardian to establish, by clear and convincing evidence, that the mother was currently unfit. Based on our thorough review of the record, however, we are unable to ascertain whether the judge, in fact, applied the correct burden of proof. First, the judge stated that the mother did not offer expert testimony regarding the potential impact on Jayce of returning custody to the mother. Fairly read, this statement can be construed two ways, one of which would constitute an improper shifting of the burden of proof to the mother. On the one hand, the statement suggests that the judge's dismissal of the mother's removal petition was based, in part, on the mother's failure to prove that a change in custody would not be harmful to Jayce's best interest, even though the burden of proof was squarely on the guardian. On the other hand, the judge's statement could be taken as a comment on the mother's response to the guardian's evidence which, although not directly addressing how a change in custody would affect Jayce, sought to portray the mother as unfit and therefore not entitled to regain custody of Jayce.

Second, the judge stated that the mother's "ability to be consistent and to follow through has never been demonstrated by [the m]other in any meaningful way." This statement also can be construed two ways, one of which would constitute an improper shifting of the burden of proof to the mother. On the one hand, the statement suggests that the judge's dismissal of the mother's removal petition was based on the mother's failure to prove her own current fitness to have custody of Jayce, when, as previously stated, it is the guardian's burden to prove unfitness. See Care & Protection of Ian, 46 Mass. App. Ct. 615, 616, 619 (1999) (impermissible burden shifting where judge stated that mother had not shown that she possessed present ability, capacity, or readiness to parent children). On the other hand, the judge's statement could be interpreted as a comment on the mother's failure to rebut evidence presented by the guardian regarding the mother's current unfitness. See Adoption of Terrence, 57 Mass. App. Ct. 832, 836 (2003) (judge's statements that mother had "demonstrated" little change in her situation and had not "demonstrated" that she was capable of caring for child did not indicate that judge had improperly shifted burden of proof to mother).

Given these different, but equally plausible, interpretations of the judge's reasoning, we cannot say with confidence whether or not the judge erroneously shifted the burden of proof to the mother. It follows that we are unable to determine whether the judge properly concluded that the guardian had proved, by clear and convincing evidence, that the mother is currently unfit to parent Jayce. Consequently, a remand for further proceedings is necessary.

We note that much of the evidence presented by the guardian during the trial on the mother's removal petition was focused on the mother's significant parental deficiencies prior to the time that the paternal grandmother became Jayce's permanent guardian in November of 2011. We recognize that a parent's past behavior can have predictive value, particularly where there has been little evidence of improvement, but the standard by which the parent is evaluated is current unfitness, which cannot be predicated on stale information. See Bezio v. Patenaude, 381 Mass. at 577 ; Adoption of George, 27 Mass. App. Ct. 265, 268 (1989) ; Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 18 Mass. App. Ct. 120, 126 (1984).

The judgment is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded

      Although Jayce's father is not a party to these proceedings, he communicated with the guardian ad litem assigned to this case, and he did not object to the paternal grandmother's appointment as Jayce's guardian.

      Hypotonia is a medical condition characterized by poor muscle tone (commonly known as floppy baby syndrome). See Stedman's Medical Dictionary 939 (28th ed. 2006).

      It appears from the documents in the record appendix that the mother discontinued these early intervention services because she was moving out of the service area.

      According to the mother, this criminal charge was dismissed in March of 2012.

      In her findings, the judge stated that the "[m]other offered no evidence from any medical professional regarding her diagnosis or treatment subsequent to her breakdown."

      At the time of trial, the mother was living with her fiancé and serving a one-year term of probation for the July 27, 2011, drug charge. After the trial's second day, the judge entered an order allowing the mother to visit with Jayce at the guardian's home.

      The judge also established the parameters for weekly parenting time and daily telephone contact between the mother and Jayce; directed the guardian to notify the mother about Jayce's medical appointments, educational meetings, and extracurricular activities; prohibited each party from making negative or derogatory comments about the other in front of Jayce; and prohibited the guardian from making any such comments about the mother to medical or school personnel.

      It appears that the judge was referring to testimony from medical professionals whom the mother had consulted about formulating a custody transition plan for Jayce.

      In her decision, the judge stated that "[r]emoval from the [g]uardian's care would likely cause psychological harm to the minor child and the risk of exposing the child to this harm is heightened by the fact that this child suffers from a severe disability and developmental delays." We are unable to determine the factual basis for such a conclusion. Jayce's pediatrician did not testify at trial, and the documents that have been included in the record appendix do not set forth this opinion.

      Our ability to review the judge's decision has been hampered by the fact that many of the documents and records on which the judge relied have not been included in the record appendix.


text:
    T.M. v. S.A.
    17-P-894
    Appeals Court of Massachusetts.
    Entered: November 27, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   T.M. appeals from the order denying her application to extend an abuse prevention order against S.A., following a hearing on S.A.'s motion to reconsider the extension of the order. We affirm.

Background. The parties were in a dating relationship from September, 2015, until December, 2015. On December 16, 2015, T.M. applied for and received an ex parte abuse prevention order against S.A. (the initial order) pursuant to G. L. c. 209A. The ten-day extension hearing was heard by a different judge, who extended the order for one year, until December 23, 2016. On December 23, 2016, T.M. sought to extend the order for another year and the parties appeared before the same judge who granted the initial order (hereinafter, judge). T.M. was represented by counsel and S.A. appeared pro se. T.M. recounted a new incident that took place on October 24, 2016, where she and S.A. were at their gym at the same time. According to T.M., S.A. took a long time to leave upon her arrival, despite being told by staff that he had to leave. The judge extended the order for another year, until December 22, 2017, and ordered S.A. to no longer attend that gym. S.A. subsequently obtained counsel, and on February 10, 2017, filed a motion to reconsider the extension of the order. On March 7, 2017, a hearing was held on this motion where S.A.'s counsel asked the judge for the opportunity to present witnesses who could testify as to the October 24, 2016, incident. The judge declined to hear from these witnesses and S.A.'s motion to reconsider was denied. That same day, however, the judge asked that the parties return for a rehearing on her order denying S.A.'s motion to reconsider. At the rehearing on May 12, 2017, the judge explained that T.M.'s reaction to the judge's March 7, 2017, ruling gave her the impression that T.M. was not relieved, but felt that it was "a victory," giving the judge doubts about whether T.M. was afraid of S.A. Accordingly, the judge heard from witnesses regarding the October 24, 2016, incident. After hearing this evidence, the judge reconsidered her extension of the order and declined to further extend it. This appeal followed.

Discussion. We review the judge's decision not to extend a 209A order "for an abuse of discretion or other error of law." E.C.O. v. Compton, 464 Mass. 558, 562 (2013).

In order to obtain an extension of a 209A order, a plaintiff must prove "by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of 'abuse' as defined by G. L. c. 209A, § 1." Iamele v. Asselin, 444 Mass. 734, 739 (2005). See Callahan v. Callahan, 85 Mass. App. Ct. 369, 372 (2014). Specifically, the question is "whether a plaintiff has a reasonable fear of 'imminent serious physical harm.' " Iamele, supra at 739-740, quoting G. L. c. 209A, § 1 (b ). The judge must consider the "totality of the circumstances of the parties' relationship," Iamele, supra at 740, and "[n]o presumption arises from the initial order." MacDonald v. Caruso, 467 Mass. 382, 386-387 (2014). Here, the judge's decision was based on the totality of the circumstances and her determination that T.M.'s testimony was not credible. There was no error.

First, although T.M. argues that the judge abused her discretion when she reopened S.A.'s motion to reconsider based on T.M.'s facial expression, "[w]e accord the credibility determinations of the judge who 'heard the testimony of the parties ... [and] observed their demeanor' ... the utmost deference" (citation omitted). E.C.O., 464 Mass. at 562. We credit the judge's observations of T.M. that caused the judge to reopen the hearing on S.A.'s motion to reconsider, and find no abuse of discretion in the decision to do so. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006).

Next, based on the judge's ruling at the hearing, we conclude that she articulated and applied the proper standard for determining whether to extend T.M.'s order. T.M. argues that the standard for terminating an abuse prevention order should have been applied. However, the record shows that the hearing was one for an extension of the order, where the judge was reconsidering the extension granted on December 23, 2016. See Bradford v. Knights, 427 Mass. 748, 752 (1998) ("The inherent power of a court in a timely and regular way, which violates no other provision of law, to rehear and reconsider its own determinations at its discretion has long been recognized"). See also Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 225 n.3 (1999). S.A.'s motion requested reconsideration of the extension and no separate motion to terminate the order was filed by S.A. See MacDonald, 467 Mass. at 389 (defendant able to challenge continuation of order after one year, where plaintiff bears "burden of proving a continued reasonable fear of imminent serious physical harm"). Contrast Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 780-781 (2005). Accordingly, the order dated May 12, 2017, denied an extension and, as a result, the order terminated on its own.

Based on the judge's ruling, it is clear that she used the totality of the circumstances to consider whether T.M. had a reasonable fear of "imminent serious physical harm." MacDonald, 467 Mass. at 386. Although T.M. argues that the judge failed to articulate the proper standard, she specifically stated, on the record, that she must decide "whether one's fear is a reasonable fear given all the facts and circumstances of the underlying case and the incidents, if any, that have occurred since [then]."

The judge also adequately considered the totality of the circumstances. Prior to the hearing on May 12, 2017, she was already aware of the circumstances surrounding the parties' relationship and T.M.'s reasons for requesting the order because she was the same judge who issued the initial order, and who extended it on December 23, 2016. Therefore, the judge's recollection of the events surrounding the parties' relationship and T.M.'s request for an order, would have been present at the time that the judge reheard S.A.'s motion to reconsider. See Litchfield v. Litchfield, 55 Mass. App. Ct. 354, 355 (2002). T.M. argues that the judge should have made specific findings of fact; however, where we are able to discern a reasonable basis for the order in a judge's rulings and order, no specific findings are required. See Ginsberg, 67 Mass. App. Ct. at 140 n.3 (affirming extension where judge made no oral or written findings, but "judge's questions during the hearing and her ultimate decision make it clear that she credited [the plaintiff's] version of the evidence and rejected [the defendant's] conflicting testimony"). Based on her ruling, it is clear that the judge made a credibility determination and did not find T.M. credible or her fear reasonable, and we will not second guess the judge's credibility determination. See A.T. v. C.R., 88 Mass. App. Ct. 532, 540 (2015). See also Jablonski v. Casey, 64 Mass. App. Ct. 744, 747 (2005) (appellate court must give deference to trial judge's credibility determinations).

Lastly, T.M.'s argument that she was not given a fair opportunity to present evidence is without merit. The purpose behind S.A.'s motion to reconsider was to present witnesses who could testify as to the October 24, 2016, incident at the gym. There was no abuse of discretion in limiting the reconsideration hearing in this regard where the judge was already aware of the surrounding circumstances and where every witness's testimony, not just T.M.'s, was limited to this event.

In conclusion, "[c]onsidering the 'totality of the circumstances of the parties' relationship,' " the judge reasonably concluded that T.M. presented insufficient evidence that she was the subject of abuse within the meaning of G. L. c. 209A, § 1. Vittone v. Clairmont, 64 Mass. App. Ct. 479, 489 (2005), quoting Iamele, 444 Mass. at 740.

Order dated May 12, 2017, denying extension affirmed.

      In the judge's ruling she specifically stated that she has no "basis to extend the restraining order." Furthermore, T.M. does not challenge the docket entry reflecting that the order was vacated, or the 209A form that indicates that the order was terminated. As such, the propriety of these entries are not before us on appeal. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975); Bongaards v. Millen, 440 Mass. 10, 28 (2003) ("As a fundamental principle, appellate courts should not reach out to decide issues that have not been briefed by any party").


text:
    COMMONWEALTH v. William R. HAMILTON.
    17-P-903
    Appeals Court of Massachusetts.
    Entered: November 27, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant, William R. Hamilton, was convicted of operating under the influence of alcohol (OUI). Following a subsequent jury-waived trial, the defendant was convicted of OUI third offense. On appeal, he claims that during the jury trial he was improperly identified by an eyewitness who had not participated in an out-of-court identification procedure in violation of the rule established in Commonwealth v. Crayton, 470 Mass. 228, 241 (2014). We affirm.

Background. Prior to trial, the defendant moved in limine to prohibit an eyewitness, Margaret Debinder, from making an in-court identification. The judge allowed the motion, but indicated that Debinder could describe the individual she observed at the scene.

At trial, Debinder testified that on October 25, 2013, at about 3:15 P.M. , she was driving on Piper Road, in Acton, about a car length behind an older model sedan, which later was identified as a Lincoln Continental. She saw the Lincoln swerve to the right and strike rocks on an embankment on the side of the road. Debinder further testified that the impact occurred with such force that the back end of the vehicle came off the ground about a foot before landing on the rocks. To Debinder's surprise, the Lincoln continued to drive down the roadway. She followed in order to alert the driver that gas and fire were trailing the vehicle. Debinder then saw that the Lincoln had pulled over into the area of Discovery Way and that the "car was engulfed in flames."

While notifying the police on her telephone of the situation, Debinder parked her car and noticed a woman bystander and "a gentleman on his telephone, and he walked away from the scene." The man was "probably maybe five, no more than ten feet away from the vehicle," and the woman was in between him and the vehicle. Firefighters and police arrived, and Debinder told the officers that she had seen a male walk away from the car and then start walking down Route 2 east, and that he weighed about 200 pounds, was over six feet tall and bald with a beard, and was wearing jeans and a sweatshirt with some type of emblem or writing on it.

The above-referenced details were dispatched to area law enforcement. Police investigation quickly led to the defendant, and substantial evidence, including the defendant's own admission, confirmed that he was the operator of the Lincoln.

Discussion. On appeal the defendant recognizes that Debinder did not make a formal in-court identification of the defendant, but argues that her multiple references to "this gentleman" and "he" signaled to the jury that the man she saw was the defendant sitting in the court room, in violation of the rule set forth in Crayton, 470 Mass. at 241, and its progeny. We disagree.

In her direct testimony, Debinder indicated that she did not know who was operating the vehicle. For example, she testified that she had followed the vehicle because she "need[ed] to tell this gentleman" that the vehicle was on fire but immediately corrected herself, saying, "or person I should say, whoever is in this vehicle." Additional direct testimony was similarly circumscribed, omitting language that suggested that the male she saw at the scene was either the driver or the defendant.

On cross-examination, Debinder occasionally referred to the operator of the vehicle as "he." During a charge conference, after the Commonwealth had completed its presentation of evidence, defense counsel noted that in certain instances the witness had referred to the driver as "he." However, defense counsel acknowledged that he had not objected to those references, and, instead, sought an eyewitness identification instruction, which the judge agreed to provide to the jury. Thus, our review of the defendant's claim on appeal is limited to whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). Viewing the evidence in context and as a whole, Debinder did not testify that the operator of the vehicle was the defendant, and did not make an in-court identification, directly or by inference. Thus there was no error, and the rule in Crayton, 470 Mass. at 241, was not implicated.

Even if we were to conclude otherwise, any error would be nonprejudicial where, as here, proof that the defendant was operating the Lincoln was overwhelming, as detailed above. In these circumstances, any arguable in-court identification by Debinder was superfluous to the other evidence of the defendant's guilt.

Judgment affirmed.

      The jury found the defendant not guilty of leaving the scene of property damage.

      The defendant was acquitted in the jury-waived trial of operating a motor vehicle with a suspended license.

      State police Trooper Patrick McCrave responded to the incident, proceeded to the Concordian Motel on Route 2, and saw two men exit one of the motel rooms, one of whom matched the description of the suspect. Trooper McCrave identified this person in court as the defendant. Trooper McCrave noticed that part of the defendant's beard was "severely singed," he appeared disheveled, and his eyes were "droopy and bloodshot." Acton police Officer Douglas Mahoney arrived and asked for the defendant's identification. Officer Mahoney likewise noticed that the defendant's eyes were glassy and bloodshot, and his speech was "slurred." He also observed the defendant leaning against a truck parked in the motel lot, and saw keys bearing a Lincoln logo on the rail of the truck bed. He placed the defendant under arrest for operating under the influence of alcohol. After receiving Miranda warnings, the defendant admitted to having had seven or eight beers and told Officer Mahoney that he had "fucked up." He confessed that he had been traveling northbound on Piper Road and struck something on the side of the road, and that the vehicle "became engulfed in flames." He admitted that the flames caused his beard to catch fire, and he fled the scene because he was scared.

      The defendant contends that his motion in limine and assorted objections at trial sufficed to preserve the Crayton issue for appeal. As Debinder did not make an in-court identification of the defendant and testified that she did not know the identity of the driver of the vehicle, there was no prejudicial error and thus we need not further explore the standard of review.

      In Crayton, 470 Mass. at 241, the court held that "[w]here an eyewitness has not participated before trial in an identification procedure, we shall treat the in-court identification as an in-court showup, and shall admit it in evidence only where there is 'good reason' for its admission."

      See, e.g., note 3, supra.


text:
    J.C. v. C.K.
    17-P-1126
    Appeals Court of Massachusetts.
    Entered: November 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, C.K., appeals from a harassment protection order under G. L. c. 258E, arguing that the plaintiff, J.C., failed to demonstrate the three acts required to establish either civil or criminal harassment. We affirm the harassment protection order.

Background. The plaintiff and the defendant worked together for several years at a company in the Boston area. The two developed a relationship that became close and eventually sexual; it continued after the defendant became the plaintiff's boss. Both the plaintiff and the defendant were married to others, and their relationship was not known inside the company. In June of 2016 a manager witnessed the defendant touching the plaintiff inappropriately, which resulted in a meeting between the defendant and the manager at which the defendant made derogatory remarks about the management of the company. The defendant was fired in June of 2016.

Around the time of his termination the defendant made statements to the plaintiff that caused the plaintiff to be concerned that the defendant blamed her for the termination. Thereafter, the parties did not have further in-person contact. However, the plaintiff testified to an escalating series of actions by the defendant, posttermination. The defendant initiated an electronic mail message (e-mail) exchange with the plaintiff in July of 2016 that ended with the plaintiff stating: "If you need to contact me for a job reference, please contact me via the [company] account. Please stop sending any other emails to this account."

After the July of 2016 e-mail, the parties had essentially no further contact for approximately three months, until October, 2016. Thereafter the plaintiff testified to the following events:

(1) On October 23, 2016, the defendant drove past the plaintiff's home while she was standing outside with her son. The plaintiff recognized the defendant's car, as well as the jacket he was wearing. The plaintiff lives in a residential neighborhood and the defendant had never previously been to her home. The plaintiff told both her husband and a coworker (the company's office manager) about this event, which disturbed her.
(2) On November 7, 2016, the defendant waited in the parking lot at the plaintiff's work place and then followed her in his car as she went to pick up her son at day care. When the plaintiff stopped at the day care to pick up her son, the defendant drove past her about seventy-five feet, stopped his car, and "glared" at her. The plaintiff was fearful as a result, and again told both her husband and the coworker about this event.
(3) The next morning, November 8, 2016, the defendant waited for the plaintiff in his car outside the son's day care. When the plaintiff arrived, the defendant "just glared at [her]"; he made "no friendly motions." The plaintiff felt that the defendant was trying to scare her, and she was "terrified." She telephoned the police, who arrived and spoke to the defendant. A police report concerning the event was admitted in evidence.

Eventually, on April 13, 2017, the plaintiff sought the harassment prevention order that is the subject of this appeal. The plaintiff's complaint alleged several other events, in addition to the three events detailed above. A temporary harassment prevention order issued on that date, and thereafter an evidentiary hearing was held on May 18, 2017, and a judge extended the order for one year.

Discussion. The legal framework for c. 258E orders has been described before in our case law. See, e.g., A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 274-275 (2017). Under c. 258E, § 1, "harassment" is defined in several ways. Here we need not pause to analyze the facts under definition (i) of harassment because in our view the plaintiff's proof satisfied definition (ii) B, which defines "harassment" to include violations of several Massachusetts criminal laws. Here, the plaintiff established "criminal harassment" under G. L. c. 265, § 43A.

Chapter 265, § 43A, states in relevant part:

"(a ) Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment."

Under the case law, the element of a knowing "pattern of conduct or series of acts," id., requires the Commonwealth to prove three or more incidents of harassment, similar to the "3 or more acts" required of definition (i) of harassment in c. 258E, § 1. Compare Commonwealth v. Welch, 444 Mass. 80, 89 (2005) (interpreting G. L. c. 265, § 43A, to require three or more incidents), with G. L. c. 258E, § 1 (under definition [i], "harassment" requires three or more acts). Here the defendant's principal argument is that the plaintiff failed to show three acts. The November 7 and November 8 events involving the son's day care are two qualifying acts, and the defendant conceded as much. But the defendant argues that there is no qualifying third act; in particular, he concentrates his attention on challenging the evidence of the October 23, 2016, drive-by of the plaintiff's home.

The defendant's challenge to the sufficiency of the October 23 event is unavailing. At the evidentiary hearing the plaintiff testified without equivocation that she saw the defendant drive by her home, and that she recognized both his distinct car and his jacket. The defendant's response is that in the prior, ex parte hearing on November 8, 2016 (see note 2, supra ), the plaintiff had been equivocal about whether she had seen the defendant on October 23, 2016, and had stated that she "wasn't completely sure." Such inconsistencies, however, are the stuff of cross-examination, and at the hearing on the instant harassment prevention order defense counsel cross-examined on exactly this point. On redirect the plaintiff offered explanations for why she was able to testify more certainly at the May, 2017, hearing than she had at the November, 2016, hearing. Any factual contest was for the judge to resolve, as the finder of fact who actually viewed the witnesses. See F.A.P. v. J.E.S, 87 Mass. App. Ct. 595, 601 (2015). The plaintiff's coworker testified that the plaintiff telephoned her and told her of the October 23 drive-by, thereby providing some corroboration as to that event. Certainly we cannot say, as the defendant appears to urge, that the evidence of the October 23 incident is insufficient as a matter of law.

Accordingly, there was sufficient evidence for the judge to find three separate acts directed by the defendant at the plaintiff. Under c. 265, § 43A, the remaining question is whether there was sufficient evidence that those acts "seriously alarm[ed]" the plaintiff, and were such that they "would cause a reasonable person to suffer substantial emotional distress." The evidence was sufficient here. The plaintiff by all accounts was seriously alarmed as of November 8, when the defendant waited at her child's day care for a second day, and the plaintiff then telephoned the police. This same evidence was also sufficient to cause a reasonable person to suffer substantial emotional distress. The defendant's behavior was objectively intimidating and irrational, where he openly shadowed the plaintiff and her young child, while not making contact. The fact that the plaintiff and the defendant had essentially no contact over the prior three months, from July to October of 2016, only added to the irrationality and alarming nature of the defendant's conduct.

Finally, the defendant seems to suggest that the statutory standard cannot be met because the plaintiff was not alarmed or distressed at the time of the October 23 drive-by, and only became alarmed after the subsequent events. The criminal harassment statute does not require, however, that each of the three required acts cause serious alarm and be such that a reasonable person would suffer substantial emotional distress; rather, the statute by its terms requires only that the "pattern of conduct" in total meet those standards. G. L. c. 265, § 43A (a ) (making unlawful a "pattern of conduct or series of acts ... which seriously alarms"). The Supreme Judicial Court so interpreted the similar language defining civil harassment in G. L. c. 258, § 1, holding that "the fact finder must look to the cumulative pattern of harassment, and need not find that each act in fact caused fear, intimidation, abuse, or damage to property." O'Brien v. Borowski, 461 Mass. 415, 426 n.8 (2012). Here there was more than sufficient evidence for the judge to find that the pattern of conduct met the standards of § 43A.

May 18, 2017, harassment prevention order affirmed.

      The facts are taken from the evidence adduced at the evidentiary hearing, viewed in the light most favorable to the plaintiff. See A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015). The judge did not make separate findings of fact.

      The plaintiff initially sought a harassment protection order ex parte on November 8, 2016, which was granted. At the extension hearing on November 22, the plaintiff decided to withdraw her request. She renewed her complaint in April of 2017, after additional occurrences increased her fears.

      The defendant also challenges several other events alleged by the plaintiff. As we find the October 23 event qualifies as the third act, we need not address the sufficiency of the remaining alleged events.


text:
    ADOPTION OF MARCO.
    18-P-668
    Appeals Court of Massachusetts.
    Entered: November 30, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The mother appeals from a decree finding her unfit to parent Marco and terminating her parental rights and dispensing with the need for her consent to his adoption. Marco's father pursues a similar appeal. We affirm.

Background. The trial took place over the course of fifteen days between May and October of 2016. After reviewing sixty-six exhibits and the testimony of twenty-two witnesses, a Juvenile Court judge made 223 findings of fact and twenty conclusions of law that were "both specific and detailed, demonstrating, as we require, that close attention was given to the evidence." Adoption of Don, 435 Mass. 158, 165 (2001). We summarize her findings.

The mother and father were born in Uganda. Sarah was born in Uganda in July, 2002; the mother moved to the United States after Sarah was born, leaving her in the care of relatives in Uganda. Amy was born in Boston in September, 2005. When Amy was two months old, the mother took her to Uganda and returned to the United States alone, leaving Sarah and Amy (the girls) in the care of relatives. The father moved to the United States in 2010. The mother and father have been in a relationship since 2011. They live together, but are not married. In March, 2012, the girls came to the United States to live with the mother and father. Marco was born in January, 2013.

The girls' life with the mother and father was marked by frequent and severe physical and emotional abuse. We need not recount the judge's extensive findings detailing the abuse, as the mother does not challenge the conclusion that she is currently unfit to parent the girls, and that termination of her parental rights is in the girls' best interests. It suffices to note that on June 6, 2014, the Department of Children and Families (department) became involved after a mandated reporter at Sarah's school observed marks and welts on Sarah's body. Sarah disclosed that the father had shaved her head as punishment and that he had hit her and Amy with a plunger stick and belt. During the investigation that immediately followed this disclosure, both parents acknowledged using physical discipline on the girls. The father admitted that he had struck Sarah five times the previous night. He did not appear remorseful and showed no emotion while discussing his actions. The father was arrested for striking the girls, and all three children were removed from the home the same day.

Both girls showed signs of trauma after they were removed. They did not want to visit the parents, and Sarah expressed particular concern for Marco's safety should he be returned to the parents' custody. She disclosed that Marco was exposed to violence in the home. According to Sarah, Marco would clap and smile while the father hit the girls. Although the father denied hitting Marco, Sarah recounted an occasion when the father whipped Marco's body with a wet, rolled handkerchief. Sarah observed bruises on Marco's legs and bottom while she was bathing him later that night. Six months after he was removed, a department social worker observed horizontal marks on Marco's back that appeared darker than the rest of his skin.

Sarah, then age eleven, was Marco's primary caretaker while the mother worked and the father watched television, talked on the telephone, or slept. Although Sarah was forced to prepare fresh meals for the parents, the children were required to eat spoiled food that caused Marco to get sick. Several times, Sarah returned home from school to discover Marco home alone. On one occasion, Marco was by himself as food cooked on the stove. The father told Sarah that he would hit Marco if Marco misbehaved like the girls.

Both parents characterized the physical abuse as normal discipline in Uganda. Neither has taken responsibility for abusing the girls. The mother stated that the father " 'has been a good father' to her children," and she declined to separate from him despite the girls' fear for their own safety and the safety of Marco. Although both parents have engaged in services, the department has not recommended reunification because the parents do not understand the impact of the abuse on the children. Indeed, the parents contend that the girls are lying about the extent of the abuse.

In January, 2016, the parents were indicted for abusing the children, including Marco. Consequently, the parents did not testify at the trial in Juvenile Court, asserting their Fifth Amendment to the United States Constitution privilege against self-incrimination. The judge drew a negative inference from the parents' failure to answer several questions relating to the abuse.

After considering the factors set forth at G. L. c. 210, § 3 (c ), the judge concluded that the parents are unfit. She found that both parents had physically abused the girls and that the father emotionally abused the girls, physically abused Marco on one occasion, and neglected Marco by leaving him home alone, allowing him to witness abuse of the girls, and giving him spoiled food. The judge also found that although the mother knew of the father's abuse of the children, she "failed to protect the children and failed to intervene. She refused to separate from Father [in spite of being told by the department that staying with him would hurt her ability to regain custody of the children] and has denied and minimized the reports of abuse and neglect." The judge also concluded that the parents do not understand the negative impact of abuse on children, and that their "continued denial of the abuse and their inability to acknowledge the impact of the abuse on the children ... demonstrates that the children remain at risk of abuse if returned to the parents." The judge approved the department's adoption plan for Marco.

Discussion. The mother claims that the judge's findings regarding Marco are based solely on evidence regarding the girls, and that there is no nexus between the mother's conduct with the girls and her current ability to parent Marco. The father claims that the judge's findings of his abuse and neglect of Marco are clearly erroneous and that, in any event, they do not establish the father's current unfitness by clear and convincing evidence. We disagree.

"In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). "[T]he critical question is whether the natural parents are currently fit to further the welfare and best interests of the child." Bezio v. Patenaude, 381 Mass. 563, 576 (1980). "We give substantial deference to a judge's decision ... 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, supra.

Here, the mother's history of parenting the girls had prognostic value that the judge was entitled to consider when deciding her fitness to parent Marco. Adoption of George, 27 Mass. App. Ct. 265, 268 (1989). The judge properly relied on both parents' "prior patterns of ongoing, repeated, serious parental neglect, abuse, and misconduct in determining" their current fitness to parent Marco. Adoption of Diane, 400 Mass. 196, 204 (1987). There was evidence that the mother repeatedly acquiesced in the father's physical and emotional abuse of the girls, and of his physical abuse and neglect of Marco. In these circumstances, the judge was not required to return Marco to the parents and risk injury to him before concluding that the parents are unfit and that termination of their rights is in Marco's best interests. Adoption of Inez, 428 Mass. 717, 721 (1999).

The judge's findings that the father abused and neglected Marco are based on Sarah's testimony, which the judge explicitly credited. We discern no clear error in those findings. They were corroborated, in part, by evidence of Marco's significant developmental delays in communication and social skills.

"Parental unfitness must be determined by taking into consideration a parent's character, temperament, conduct, and capacity to provide for the child in the same context with the child's particular needs, affections, and age." Adoption of Mary, 414 Mass. 705, 711 (1993). Mindful of this standard, we agree that there was clear and convincing evidence of the parents' unfitness that would put Marco's welfare in jeopardy if he was returned to their care. It is clear from the record that they (1) lack insight into the impact that the severe abuse has had on the girls, and (2) have not recognized or taken responsibility for the danger such abuse would pose to Marco. See Care & Protection of Three Minors, 392 Mass. 704, 712 (1984). The parents' claims of error in the judge's findings and conclusions are, in large part, attacks on her credibility assessments and her weighing of the evidence. These conclusions, however, are entitled to substantial deference, Adoption of Peggy, 436 Mass. 690, 702, cert. denied sub nom. S.T. v. Massachusetts Dep't of Social Servs., 537 U.S. 1020 (2002), and the judge was in a "superior position to evaluate witness credibility." Adoption of Cadence, 81 Mass. App. Ct. 162, 166 (2012). Having carefully reviewed the record in this case, we see no reason to disturb her view of the evidence. Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

Decrees affirmed.

      The mother's rights were also terminated as to her two older children, Sarah and Amy (pseudonyms). On appeal, she challenges the termination of her parental rights as to Marco only.

      Marco's father is not the father of Sarah and Amy. Our use of "father" in this memorandum and order refers only to Marco's father. The fathers of Sarah and Amy are not involved in this appeal.

      Marco's birth certificate states that he was born in January, 2013. The judge found that he was born in April, 2013. Nothing turns on this discrepancy.

      Sarah asked to meet with the director of the department's area office in order to express her fear that Marco would be abused if he returned home.

      The mother was also present for some of the beatings, but did not intervene or seek medical assistance for the girls.

      The girls asked why the father was not in jail, and Amy expressed fear about the father's contact with the mother and Marco.

      The father was indicted on charges of trafficking persons under eighteen for forced services, assault and battery by means of a dangerous weapon on a child under fourteen, assault and battery on a child causing bodily injury, reckless endangerment of a child, and assault and battery. The mother was indicted on charges of assault and battery by means of a dangerous weapon on a child under fourteen, assault and battery on a child causing bodily injury, and reckless endangerment of a child.


text:
    COMMONWEALTH v. Luis GONZALEZ.
    18-P-192
    Appeals Court of Massachusetts.
    Entered: November 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court jury convicted the defendant of two counts of assault by means of a dangerous weapon based on evidence that he participated in two drive-by shootings in Lowell. On appeal, the defendant challenges the denial of his pretrial motion to suppress evidence, arguing that the police stopped his vehicle without reasonable suspicion. We affirm.

Background. We summarize the relevant facts from the motion judge's findings on the motion to suppress, supplemented where appropriate by uncontroverted suppression hearing testimony that he explicitly or implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). At approximately 1:10 A.M. on July 9, 2014, Lowell police Officer Patrick Casey was in a marked police cruiser on Brook Street in the "Acre neighborhood," a high crime area, in the city of Lowell. As he approached the intersection of Willie Street, Officer Casey heard five gunshots from an area in front of his direction of travel. Two seconds later he observed a car to his left "accelerating away rapidly" on Willie Street. There was no other pedestrian or vehicular traffic in the area. Officer Casey turned left from Brook Street onto Willie Street and gave chase, but was unable to catch up. After following the car onto Rock Street and School Street, Officer Casey activated his overhead lights and siren. The car did not stop. It turned left onto Crane Street and then came to a stop. After Officer Casey reported the license plate number of the car, a gray Honda, to dispatch, he got out of his police cruiser to approach the driver. As he did so, the car sped away. Officer Casey got back into his cruiser and again pursued the car, turning left onto Middlesex Street and right onto Queen Street where the car again came to a stop.

Officer Casey approached the car with his gun drawn. The driver, later identified as the defendant, and the rear seat passenger extended their empty hands out the windows. Officer Casey, supported by backup officers, removed the suspects from the vehicle. The defendant was arrested after a records check revealed that he had an active warrant and a suspended driver's license.

The evidence at trial revealed that a subsequent search of the gray Honda resulted in the seizure of a nine millimeter bullet casing wedged in the area of the front windshield wiper, a casing in the area of the back window, and a nine millimeter magazine between the two front seats. The defendant's motion to suppress evidence sought an order excluding these items as evidence at trial.

Discussion. We accept the motion judge's factual findings unless they are clearly erroneous. See id. However, we "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Durand, 475 Mass. 657, 664 (2016), quoting Commonwealth v. Bostock, 450 Mass. 616, 619 (2008). Here, the defendant does not challenge the judge's findings of fact. He claims error in the judge's conclusion that there was reasonable suspicion to stop the defendant's car. For the reasons that follow, we discern no error in the judge's reasoning.

A stop is justified when police have a reasonable suspicion that the person stopped is committing, has committed, or is about to commit a crime. Commonwealth v. Silva, 366 Mass. 402, 405 (1974). The reasonable suspicion 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. In determining reasonable suspicion in cases involving gunshots, we consider the following factors, among others: (1) the particular characteristics which distinguish the suspect from others, (2) the proximity of the place of the stop to the place of the suspected criminal activity, (3) the time between the suspected criminal activity and the stop, (4) the conduct of the suspect upon his initial encounter with the police, including evasive behavior, (5) whether there is independent police corroboration of the criminal activity, (6) the geographic boundaries of the area where the suspect may be found, and (7) the nature of the place where the suspected criminal activity occurred. Commonwealth v. Doocey, 56 Mass. App. Ct. 550, 554-556 (2002). We note also that the firing of gunshots in a neighborhood is a dangerous situation requiring a prompt and thorough police investigation. See id. at 558 ; Commonwealth v. Hurd, 29 Mass. App. Ct. 929, 930-931 (1990). "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency" (citation omitted). Mincey v. Arizona, 437 U.S. 385, 392 (1978).

Here, the judge applied the Doocey factors, concluding that there were "articulable facts and circumstances linking the grey Honda to the gunshots." We agree. While on patrol in a high crime area, Officer Casey heard five nearby gunshots. Two seconds later, he observed the gray Honda, the only vehicle in sight, leave the area at a high rate of speed. He immediately followed the car in his marked cruiser, never losing sight of it. Nevertheless, he was unable to close the gap before the car came to a stop. "Although the fact of the defendant's flight, standing alone, is insufficient to justify his seizure, it is a relevant factor to be considered when coupled with other facts." Commonwealth v. Jeudy, 75 Mass. App. Ct. 579, 583 (2009). The other facts here, specifically Officer Casey's personal observation of a lone vehicle leaving the area where the shots had been fired only seconds earlier, when considered together with the defendant's flight, led to a reasonable suspicion, even before Officer Casey activated his siren and overhead lights, that the occupants of the gray Honda were committing or had committed a crime. See Commonwealth v. Smigliano, 427 Mass. 490, 492 (1998) ("activating the blue lights thus was a seizure requiring some level of justification").

Judgments affirmed.


text:
    L.R. v. E.L.
    18-P-300
    Appeals Court of Massachusetts.
    Entered: November 29, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the order denying his motion to vacate a permanent abuse prevention order that was entered on September 28, 2000, pursuant to G. L. c. 209A, § 3. Because the defendant failed to prove by clear and convincing evidence that, as a result of a significant change in circumstances, no reasonable fear of imminent serious physical harm to the plaintiff presently exists, we affirm.

1. Background. On September 11, 1997, the plaintiff obtained an emergency ex parte abuse prevention order against the defendant. After a contested hearing, at which both parties were present, that order was extended for one year. The order was extended again for one year in 1998 and again in 1999 and was then made permanent in 2000. The defendant did not appear at any of the extension hearings after 1997, and did not challenge the permanent abuse prevention order on direct appeal.

Approximately thirteen years later, in March of 2013, the defendant moved to vacate the permanent order, alleging that the order was no longer needed because he had no contact with the plaintiff in the previous fifteen years. In addition, the defendant contended that he frequently travels out of the country for work and, as a result of the order, he is subject to a mandatory secondary interview by customs officials. He claims that the additional screening has caused him to be delayed and to miss connecting flights. At the time the defendant filed the motion to vacate, he lived in Maine. After a hearing, at which both parties were present, the motion was denied and the defendant did not appeal.

Four years later, the defendant filed a second motion to vacate the abuse prevention order. The motion is based substantially on the same arguments advanced in support of the motion filed in 2013. The only difference between the two motions is that by 2017, the defendant had not seen the plaintiff in twenty years. After a hearing, at which the plaintiff and defendant appeared, the judge, who was the same judge who had entered the permanent order in 2000, denied the defendant's motion. In concluding that the defendant had not met his burden, the judge was aware that the defendant, who lived in Nova Scotia in 2000 when the permanent order entered, now lives in Maine, which is closer to the plaintiff. The judge also noted that he was familiar with the defendant's criminal history. The judge recalled that he had entered the permanent order and observed that he is "very reluctant" to enter such orders.

2. Discussion. We review the denial of a motion to vacate a permanent abuse protection order for abuse of discretion. See MacDonald v. Caruso, 467 Mass. 382, 382-383 (2014). In order to prevail on his motion, the defendant was required to show by clear and convincing evidence (1) that there has been "a significant change in circumstances since the order was issued"; and (2) "whether, under the totality of the circumstances, the plaintiff, without the protection of an order of abuse prevention, would no longer reasonably fear imminent serious physical harm from the defendant." Id. at 390-391.

The defendant argues that three significant changes in circumstances justify terminating the order. The changes specified are that he has not seen the plaintiff in twenty years, he resides in Maine, and the existence of the order causes him to be delayed by customs officials when he travels abroad for work. The judge properly concluded that none of those changes in circumstances was sufficiently significant so as to require further inquiry.

The first specified change, the passage of time, was rejected by the Supreme Judicial Court in MacDonald. "The significant change in circumstances must involve more than the mere passage of time, because a judge who issues a permanent order knows that time will pass." MacDonald, 467 Mass. at 388. The second specified change, the defendant's residence in Maine, is not a change at all because at the time the permanent order entered in 2000, the defendant was already living outside of Massachusetts and, as the judge noted, the defendant now lives closer to the plaintiff. The third specified change, the inconvenience of extra scrutiny at airports, is simply a collateral consequence of the abuse prevention order. As such, it cannot be considered a change in circumstances. "Where a defendant has failed to meet his burden to terminate an abuse prevention order, the order shall not be terminated, regardless of how onerous the collateral consequences, because the only relevant issue is the safety of the plaintiff." Id. at 392.

As the defendant has not met his burden of demonstrating a significant change in circumstances, we need not consider whether he met his burden to show "by clear and convincing evidence that ... it is no longer equitable for the order to continue because the [plaintiff] no longer has a reasonable fear of imminent serious physical harm." Id. at 382-383.

3. Appellate attorney's fees. The plaintiff argues that she is entitled to her reasonable appellate attorney's fees because the defendant pursued a frivolous appeal. See Mass. R. A. P. 25, as appearing in 376 Mass. 949 (1979). We agree. The plaintiff may submit a petition for her appellate attorney's fees to this panel in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty calendar days of the date of the rescript. The defendant may respond within twenty calendar days from the date of said filing.

Order denying motion to vacate permanent abuse prevention order affirmed.

      To the extent the defendant challenges the validity of the entry of the permanent order, his arguments are unavailing. "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." MacDonald, supra at 388.