text:
    COMMONWEALTH v. Yasmani QUEZADA.
    17-P-105
    Appeals Court of Massachusetts.
    Entered: February 14, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Yasmani Quezada, was convicted by a jury in the Superior Court of breaking and entering in the daytime with the intent to commit a felony therein in violation of G. L. c. 266, § 18. The defendant appeals from his conviction and the denial of his pretrial motion to suppress evidence obtained through an interception warrant pursuant to G. L. c. 272, § 99. The defendant asserts five arguments on appeal. First, the defendant argues that the motion judge erred in denying the defendant's motion to suppress evidence obtained through an interception warrant. He argues that the Commonwealth did not satisfy the requirement, pursuant to G. L. c. 272, § 99(E)(3), that normal investigative procedures had been tried and failed or reasonably appeared unlikely to succeed if tried. Second, the defendant argues that the trial judge erred in allowing the Commonwealth to introduce evidence of the defendant's subsequent bad acts. Such evidence included items found on the defendant's person during arrest (including keys, a box of sandwich bags, and approximately $2,000 in cash), and other items (including heroin) that were recovered from an apartment in Revere (Revere apartment) during the execution of a search warrant. Third, the defendant argues that the trial judge erred in not providing the jury with a constructive possession instruction for the evidence that was admitted regarding the defendant's subsequent bad acts, and that such lack of instruction created an impermissible presumption violating the defendant's due process rights. Fourth, the defendant argues that the trial judge erred in preventing defense counsel from examining a witness about statements that fell within the crime-fraud exception to the attorney-client privilege. Lastly, the defendant argues that the trial judge erred in admitting Sergeant Russolillo's opinion testimony that references made in the wiretap telephone calls of "going to church" refers to a conspiracy to commit a breaking and entering. We affirm, addressing each issue in turn.

Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving some facts for later discussion. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).

1. The interception warrant. On January 7, 2010, on the basis of an affidavit demonstrating cause to believe two telephones were being used to coordinate illegal gaming, a Superior Court judge issued a search warrant authorizing the Massachusetts State police (MSP) to wiretap said telephones. This warrant was renewed three additional times before the MSP intercepted a telephone call that appeared to show that a Federal Bureau of Investigation (FBI) agent was set to pay money to a main target of the MSP investigation. While confirmation was pending whether the FBI was involved with the target, a Superior Court judge renewed the wiretap authorization a fourth time, expanding it to include the defendant's telephone. The judge, at this juncture, was unaware of the possible FBI involvement. Five days after the fourth renewal, however, investigators informed the judge through an affidavit that one of the targets of the MSP investigation was working with the FBI as an informant.

2. The burglary. Between March 17 and March 28, 2010, the MSP intercepted several telephone calls between the defendant and others about "going to go to church [on] Sunday." These intercepted calls also included conversations regarding who would be present at an apartment in the Roslindale section of Boston (target apartment) on Sunday, specifically that "no one's going to be there today, right?" and "on Sundays they're never there ... after four o'clock in the afternoon they're not there ...." The MSP obtained anticipatory warrants for Sunday, March 21, the expected day of the target apartment burglary. The burglary did not take place on this date, and the MSP did not execute the warrants.

Sergeant Russolillo testified at trial that because the MSP intercepted further telephone calls about the defendant and others "going to church" on Sunday, March 28, the MSP decided to assemble near the target apartment on that date. Around 4:15 P.M. on March 28, the assembled MSP team witnessed two individuals arrive near the target apartment in a truck. The individuals proceeded down the driveway toward the target apartment's back entry and, about seven minutes later, proceeded back up the driveway, returning to the truck with their hands in their pockets. After the two individuals drove away, an MSP trooper swept the target apartment for occupants and observed the exterior rear door had been "forcibly opened"; a piece of the wooden doorframe was found lying on the floor. The trooper also observed the apartment was "virtually untouched" apart from the bedroom. In the bedroom, dresser drawers were pulled open, items were lying about, and the mattress had been moved aside. The MSP thereafter obtained a search warrant to search the target apartment and found 900 grams of heroin on a high shelf in the closet of the bedroom.

3. Search warrant for Revere apartment. On May 20, 2010, the MSP executed a search warrant at the Revere apartment. The defendant was arrested outside that apartment while the MSP executed the warrant. At the time of the arrest, the defendant had a key to the Revere apartment, $2,000 in cash, and plastic sandwich bags on his person. During the search of the Revere apartment, the MSP found heroin as well as other items seemingly belonging to the defendant, such as a baby's crib, a baby's birth certificate with the defendant's name, and a photograph of the defendant with a baby. The heroin seized from the Revere apartment was admitted as evidence at trial.

On December 16, 2011, the defendant filed a "renewed motion to suppress" evidence obtained through the electronic surveillance, arguing that had the MSP's applications for the wiretap warrants included the FBI's involvement with the main target of the MSP investigation, the MSP would have been unable to show the necessity requirement of a wiretap pursuant to G. L. c. 272, § 99(E)(3). The defendant's renewed motion to suppress was denied on March 7, 2012.

Discussion. 1. Normal investigative procedures. The defendant first argues that the MSP's application for wiretap authorizations failed to satisfy the requirements under G. L. c. 272, § 99(E)(3), and, thus, the defendant's renewed motion to suppress evidence should have been granted. We disagree.

"[A] warrant authorizing a wiretap may issue only on 'a showing by the applicant that normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried.' " Commonwealth v. Fenderson, 410 Mass. 82, 83 (1991), quoting from G. L. c. 272, § 99(E)(3). "In meeting its statutory burden of establishing necessity, the Commonwealth need not show that traditional investigative techniques were wholly unsuccessful or that the police had exhausted all other investigative procedures before filing its application for a warrant authorizing a wiretap. The necessity requirement is meant to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime. The affidavit will be adequate if it indicates a reasonable likelihood that normal investigative techniques have failed in gathering evidence, or would fail if attempted. In determining whether the Commonwealth has met its burden, the affidavit should be read in a practical and commonsense manner." Id. at 83-84 (quotations and citations omitted).

Here, the MSP trooper's affidavit in support of the wiretap warrant provided that one of the primary goals of the MSP investigation is the "successful dismantling of ... criminal syndicates" and identifying "persons at higher levels of the organization beyond that of the overall bookmaking operation, people like [the FBI informant]." The motion judge found, and we agree, that "[t]he necessity requirement in G. L. c. 272, § 99 E 3, did not compel the [MSP] to compromise the prosecution of one of their primary organized crime targets by trying to recruit him as an informant." The defendant asserts that it was impossible for the motion judge to reach such a conclusion when the record did not include the degree of cooperation between the FBI and the MSP or the agreement between the FBI and the FBI informant, and that it was possible that "the FBI informant would have given [the MSP] the unique and ground-breaking potential to crack the case wide open without the use of wiretaps." However, it is clear that attempting to use the FBI informant as an informant for the MSP investigation would have thwarted the overall goal of the MSP investigation, that is, to prosecute and dismantle the FBI informant's organization.

Additionally, the affidavit further explained that other normal investigative procedures had been used and exhausted. For instance, other MSP informants used for the investigation were extremely fearful of the FBI informant. The affidavit provided that one informant known as CI-3 "firmly believes" that the FBI informant "would kill [CI-3] were [the FBI informant] to discover that [CI-3] has provided information to [the MSP]." Like the informants in Fenderson, the MSP informants here were unwilling to testify against the defendant and other suspects in the MSP investigation. See Fenderson, 410 Mass. at 84. Moreover, the affidavit also explained that these MSP informants were "unable to penetrate into the organization to any significant degree" and that "attempts to have the informants further penetrate this organization as agents of the [MSP] might place them at substantial risk of their roles as informants being discovered." We agree with the motion judge here that the MSP conducting any further normal investigative procedures would not only have been unlikely to succeed but would likely have compromised the overall goal of "apprehending and prosecuting all the members of [the] organization."

2. Challenged evidence and jury instruction. The defendant next challenges the introduction of evidence found on the defendant and at the Revere apartment during the execution of a search warrant. The defendant argues that the evidence was improperly admitted because (1) it did not pertain equally to all coventurers and therefore could not furnish a motive and intent for the burglary, and (2) its probative value was outweighed by the possibility of unfair prejudice.

Massachusetts Guide to Evidence § 404(b) (2017) provides that other acts are "not admissible to prove a person's character" but such evidence "may be admissible for another purpose, such as proving motive." Here, the items seized from the Revere apartment, including the heroin, were admitted in evidence to show the defendant's motive to commit the burglary, which involved a scheme to steal heroin. Contrary to the defendant's argument, such evidence need not "pertain equally to all coventurers." "There is no requirement that joint venturers share a motive for the success of the venture. Motive is not an element of proof under the theory of joint venture." Commonwealth v. Carroll, 439 Mass. 547, 553 (2003).

Additionally, the probative value of the evidence was not outweighed by the possibility of unfair prejudice, nor did it, as the defendant contends, divert "the attention of the jury from the crime immediately before it." As stated previously, the evidence was admitted solely to show the defendant's motive to participate in the crime. The defendant fails to provide us with any persuasive argument on how the defendant was unfairly prejudiced and how any such prejudice outweighed the probative value of providing the jury with the defendant's potential motive. Moreover, the trial judge carefully provided the jury with detailed instructions on how to weigh this particular evidence in their deliberations. At the time the evidence was introduced, the trial judge gave the following instruction:

"This evidence concerning the narcotics alleged to have been recovered in that apartment in Revere is admitted only for a very limited purpose .... [I]t is for you to decide what evidence is credible and what evidence is believable. That evidence has been admitted for the limited purpose regarding the Commonwealth's theory of the case, being that the object of the breaking and entering was the theft of illegal narcotics. This evidence is admitted only on the issue of the motive and intent of the defendants and for no other purpose.... You must consider these items only for the issue of motive and intent and for no other purpose, and I'm instructing you strongly on that point."

He gave a similar instruction during the final jury charge. The record reflects that the trial judge appropriately balanced the probative weight of the evidence with the risk of unfair prejudice, and determined that the evidence was admissible for the limited purpose of showing the defendant's motive; the judge did not abuse his discretion.

The defendant also argues that the trial judge erred in not providing the jury with an instruction on constructive possession, and that the limiting instructions that were provided contained an impermissible presumption linking the defendant to the admitted evidence, violating the defendant's due process rights. We disagree.

"Due process requires that the government prove beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged. Instructions to the jury that would lead them to believe otherwise are constitutional error." Commonwealth v. Cruz, 456 Mass. 741, 752 (2010) (quotation omitted). Here, the judge's instructions did not contain an impermissible presumption that the defendant was linked to the admitted evidence, rather, the judge's instructions were clear that the jury were "to determine the value that any such evidence should be given" and that the jury were not required to find that the defendant had possession of the heroin in the Revere apartment. The trial judge stated, "[N]either [the defendant] nor [the codefendant] are charged here before you with any issue of possession of that narcotics. It's for you to determine the value that any such evidence should be given but you must consider it only for the limited purpose regarding intent and motive and not consider it otherwise." The defendant, again, provides us with no persuasive argument or case law that would lead us to conclude that the judge's jury instructions created an impermissible presumption that the defendant was linked to the Revere apartment heroin.

3. Defense counsel's questioning of Pimental. The defendant next argues that the trial judge incorrectly precluded defense counsel's cross-examination of Altagracia Pimental based on the attorney-client privilege. The defendant contends that cross-examination concerning "false representations [Pimental] may have made to her attorney" should have been permitted because it satisfied the crime-fraud exception to the attorney-client privilege. We disagree.

The defendant's questioning regarding Pimental's false representations to her attorney started with the defendant asking Pimental if she was aware that her attorney had made certain statements at Pimental's bail hearing. When Pimental answered that she was not present at the bail hearing either in person or on videotape, defense counsel changed the topic of questioning. Such change in questioning was not, as the defendant contends, due to the trial judge's previous sidebar comment that "my attena[e] are up a bit on your questioning, ... because ... [Pimental is] entitled not to have the attorney/client privilege breached." Rather, defense counsel changed the line of questioning because there was nothing further to inquire about Pimental's knowledge of what was said at the bail hearing since she had not been present.

4. Sergeant Russolillo's testimony. Lastly, the defendant argues that the trial judge erred in allowing Sergeant Russolillo's testimony about the meaning of "going to church" because such testimony does not qualify as expert or lay opinion.

Sergeant Russolillo testified that the MSP had intercepted several telephone conversations where the suspects "spoke about again going to church" and that because of those statements, Sergeant Russolillo "believed what was going to happen on the 21st would happen on the 28th." The defendant maintains that this testimony was Sergeant Russolillo's lay opinion interpreting the phrase "going to church" to mean a conspiracy to commit a burglary. However, such testimony was provided to show Sergeant Russolillo's state of mind and why he decided to assemble a MSP team outside the apartment on March 28, 2010. "Where one's state of mind is important, the person may himself testify about it." Carriere v. Merrick Lumber Co., 203 Mass. 322, 327 (1909). The trial judge did not abuse his discretion in allowing such testimony.

Judgment affirmed.

      According to the testimony of Altagracia Pimental, one of the residents of the target apartment, on that date, there was an estimated one-half kilogram of heroin under a mattress in the apartment and about $15,000 in cash in a drawer.

      The Commonwealth concedes that Sergeant Russolillo's testimony was not admissible as expert opinion.


source: Caselaw Access Project

license: Public Domain

text:
    S.W. v. R.D.
    17-P-206
    Appeals Court of Massachusetts.
    Entered: February 14, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, R.D. or father, appeals from a modification judgment of the Probate and Family Court that ordered him to pay current and retroactive child support to the plaintiff, S.W. or mother, for the parties' two youngest daughters. R.D. also was required to pay S.W.'s legal costs and fees incurred in connection with her complaint for modification. A subsequent motion by R.D. to vacate the modification judgment was denied. On appeal, R.D. challenges the sufficiency of the notice of the hearing at which the judgment entered. He also contends that the child support order and the award of attorney's fees were not warranted. We affirm.

Background. We summarize the relevant factual and procedural history from the record. The parties, who are not married, have four children. On or about May 2, 2005, a judgment entered requiring the father to pay child support to the mother in the amount of $235 per week (support judgment). The parties subsequently reconciled prompting S.W. to file a complaint for modification seeking dismissal of the support judgment. Although the support judgment was dismissed on March 5, 2007, the father continued to pay child support until September, 2014, just before the youngest daughter's eighteenth birthday.

Soon thereafter, on January 15, 2015, the mother filed a complaint for modification seeking to reestablish R.D.'s obligation to support their two youngest daughters. R.D. was served with the summons and complaint on February 10, 2015, at his last and usual place of abode, and a pretrial conference was scheduled for September 15, 2015. When the father failed to appear, the pretrial conference was rescheduled for January 27, 2016. R.D. again failed to appear for the pretrial conference and, by order dated January 28, 2016, a pretrial conference was scheduled for June 9, 2016. In relevant part, the order provides as follows:

"2. Father [R.D.] shall attend the Pre-Trial Conference, prepared with a written memorandum and a complete and accurate, signed Financial Statement as instructed in the separate Notice and Order for same that was mailed to him by the Court. If Father fails to attend, his obligation for support, maintenance and education for [the two daughters] may be determined in his absence based upon his 2015 earned income as stated in the subpoenaed Boston University records obtained by Mother's attorney."

R.D. did not attend the hearing on June 9, 2016. The judge proceeded as provided in the pretrial notice and order and called the modification complaint for trial. The judge found that both daughters were full-time college students domiciled with the mother and principally dependent upon her for their support. The judge calculated S.W.'s gross weekly income at $975, the amount reflected on the mother's financial statement dated June 8, 2016. The judge imputed a gross weekly income of $1,322 to the father "based upon his 2015 earned income as stated in the subpoenaed Boston University records" from his employer. The judge then determined that R.D.'s child support obligation for the two daughters was $333 per week and ordered R.D. to pay current child support to the mother in that amount per week forthwith, and retroactively to the week ending February 13, 2015. As a result of the retroactive application of the order, the father owed the mother an additional $23,310. The judge also ordered R.D. to pay S.W.'s legal costs and fees in the amount of $3,500.

About three weeks later, on June 28, 2016, the father filed a motion to vacate the judgment, asserting, with no supporting affidavit, that he did not receive notice of the hearing that had been scheduled for June 9, and that the amount of income imputed to him was incorrect because the judge failed to consider (1) that he pays health insurance for the daughters, and (2) that he has child support obligations in connection with another child.

A hearing on R.D.'s motion to vacate the judgment was held on July 13, 2016. Among other arguments, the father claimed that he was entitled to relief because he had not received notice of the modification proceedings. In support of this claim R.D. relied on a letter (which he apparently attached to his motion) that had been sent to him and then returned to the court. He also pointed to several instances wherein his name had been misspelled on proofs of service. The judge rejected this argument on two grounds: first, R.D. had not complied with Standing Order 2-99; and second, R.D. had failed to provide sufficient evidence of lack of notice. As the judge explained "[t]he attachment (letter) that was returned is from 2015. None of the several mailings to the same address thereafter have been returned, and it is the address now stated by recipient as accurate."

Discussion. We begin by addressing the mother's claim that the appeal is moot. It is not. Although the parties appear to have settled the issues of arrearages and ongoing child support of the youngest daughter by entering into a stipulation which was incorporated into a judgment of modification, the questions regarding notice and whether the award of child support and attorney's fees was warranted remain unresolved. We therefore proceed to address the merits of the father's claims.

1. Notice. R.D. claims that he was denied due process of law because he did not receive notice of the pretrial conferences held on January 28 and June 9, 2016, or the subsequent trial held after he failed to appear on June 9, 2016. In support of his claim, R.D. points to a single letter that was returned to the court on March 30, 2015, as undeliverable, and to several minor misspellings of his name in various court documents. The judge concluded that R.D.'s evidence of lack of service was insufficient. We agree.

The judge correctly found that the return of one letter to the court approximately one year before the date of the pretrial conference at issue did not demonstrate that the father had not received sufficient notice of the proceedings. Moreover, R.D. never provided an affidavit or a sworn statement in support of his claim. Finally, the record supports a finding that the father received correspondence from the mother's attorney, dated February 2, 2016, to which the pretrial conference notices and the January 28, 2016, order were attached. In these circumstances, we think it is clear that the father is not entitled to relief on the basis that he did not receive proper notice of the proceedings.

2. Child support calculations. Next, the father argues that the judge abused her discretion in awarding child support because she did not consider his responsibility to provide for another child, his voluntary expenses, or the fact that he provides health insurance for the daughters. However, no evidence of these expenses was before the judge, and the father never filed a signed financial statement as required by the January 28, 2016, pretrial order before judgment entered. Absent a statement of his current income, the judge properly used R.D.'s 2015 earned income to calculate his child support obligations. We will not second-guess the judge's calculations where R.D. "failed to provide the judge with evidence from which she might have arrived at a different figure." M.C. v. T.K., 463 Mass. 226, 240 (2016).

3. Attorney's fees. R.D. claims error in the judge's award of attorney's fees to S.W. in the amount of $3,500. Such an award rests in the judge's sound discretion. See M.C. v. T.K., supra at 242. The judge's reasons for awarding attorney fees are supported by the record and, therefore, there was no abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

4. Motion to vacate. R.D.'s argument with respect to the denial of his motion to vacate barely rises to the level of appellate argument, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, in light of R.D.'s failure to engage in the proceedings until after judgment had entered, despite being aware of them, the judge committed no abuse of discretion by denying the motion.

5. The mother's request for appellate attorney's fees and costs. We agree with S.W. that she is entitled to an award of appellate attorney's fees and costs. Thus, in accordance with Fabre v. Walton, 441 Mass. 9, 10-11 (2004), S.W. may submit an application for fees and costs with supporting documentation within fourteen days of the issuance of the rescript. R.D. shall have fourteen days after the application is filed to respond.

Judgment affirmed.

Order denying motion to vacate judgment affirmed.

      Both R.D. and S.W. have filed a supplemental appendix without prior court approval as required by Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). The mother has filed a motion to expand the record on appeal to include the documents in her supplemental appendix; no such motion has been made by R.D.. See International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 847 (1983) ("A pro se litigant is bound by the same rules of procedure as litigants with counsel"). The mother's motion is allowed, and we also consider R.D.'s supplemental appendix for the purpose of setting forth the facts.

      R.D. told the judge that (1) he did not stop his child support payments because the youngest child turned eighteen but because S.W. moved and would not give him her address; (2) S.W. had lied on her financial statement about her income and payment of health insurance; and (3) both children were over the age of eighteen and the judge failed to take into account their earnings or income in fashioning an appropriate child support order.

      R.D.'s motion indicates that the letter, which was apparently returned to the court as undeliverable, was submitted as an attachment to the motion. R.D.'s appendix contains a copy of the motion, but there is nothing attached to it.

      Probate and Family Court Standing Order 2-99 applies to motions "for Relief from Judgment and Order (Rule 60)." R.D. did not comply, inter alia, with subparagraph (a)(1) of the Standing Order, which provides in pertinent part: "The moving party shall serve with the motion a copy of the order of judgment at issue and a concise statement of facts and law in support of why the motion should be granted. The statement shall be ... signed under the penalties of perjury."

      We note that the proper way to raise mootness is by affidavit, Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117, 123 (1995), which S.W. has not done.

      While there is evidence in the reply brief appendix that R.D. contributed to the support of his child from another relationship, there is no evidence that these documents were before the judge. The judge found that the documents R.D. did provide to prove his obligation to support the other child were of questionable authenticity.

      R.D. did file a statement on July 13, 2016, the same day of the hearing on his motion to vacate the modification judgment.

      The pretrial notices and orders sent to and received by R.D. explicitly state that a failure to appear will result in the imposition of sanctions.


text:
    COMMONWEALTH v. Peter V. GRANTSIS.
    16-P-1597
    Appeals Court of Massachusetts.
    Entered: February 13, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Peter V. Grantsis, appeals from a District Court judge's order revoking his probation. He contends that the evidence was insufficient to prove that he had committed any new crimes. We affirm.

Background. On July 14, 2015, the defendant pleaded guilty to assault and battery, G. L. c. 265, § 13A(a ). He was sentenced to six months in the house of correction with the balance suspended for one year of probation. On July 6, 2016, prior to the expiration of his probation term, he was charged with four new offenses: (1) unlawful possession of a theft detection device remover, G. L. c. 266, § 30(b ) ; (2) receiving stolen property, G. L. c. 266, § 60 ; (3) shoplifting by asportation, G. L. c. 266, § 30A ; and (4) violating an abuse prevention order, G. L. c. 209A, § 7. The defendant was subsequently detained pending a probation violation hearing that was held on July 27, 2016.

At the hearing, a probation officer introduced a police report outlining the events underlying the first three new charges. The report, which the judge found to be substantially reliable, was prepared by Hanover police Officer Colin Grady. It explained that on the evening of July 5, 2016, Officer Grady was working a patrol shift at the Hanover Mall. At 6:15 P.M. he was made aware that mall public safety officers were monitoring a couple pushing a baby stroller. He was also advised that the couple had exhibited suspicious behavior in the past. The following then occurred:

"Public Safety Officer William Sanna was watching the couple using the [m]all CCTV. Sanna reported the couple went into Old Navy and Fye. Sanna then watched as the male party ... entered into Walmart. The female ... with the child ... went to their vehicle in the parking lot.
"Sanna watched on CCTV as [the female] entered the vehicle and began to remove clothing items from her hand bag and place them in the vehicle. ... Sanna reported that [the female] and [the child] reentered the mall. I arrived at the vehicle and looked in the rear passenger window. In plain sight I could see a stack of clothes with Old Navy tags on them."

After the couple was caught acting suspiciously in a Victoria's Secret store, they returned to the vehicle and began to drive away. At that time, Officer Grady pulled them over and approached the vehicle. He observed that the female was driving and the male-who turned out to be the defendant-was in the passenger seat. Upon searching the defendant, Officer Grady discovered a pair of pliers and a multi-tool, which "based on [his] training and experience," he knew to be tools used to remove security devices. After both parties were arrested, a search of the vehicle revealed over $250 worth of merchandise from Old Navy and Dick's Sporting Goods, both stores in the mall. Based on these facts, the judge found that the defendant had violated his probation by committing the crimes of shoplifting and receiving stolen property. Following a sentencing hearing, the judge imposed the suspended sentence with credit for time served. This appeal ensued.

Discussion. The defendant argues that the police report was insufficient to prove any of the newly charged crimes and, therefore, the order revoking his probation should be reversed. We disagree. The report was sufficient to establish, as the judge found, that he received stolen property.

The standard of proof at a probation surrender hearing is the less demanding civil standard of preponderance of the evidence. See Commonwealth v. Holmgren, 421 Mass. 224, 227 (1995). Where, as here, the judge's findings are based solely on documentary evidence contained in the record, our review is de novo. See Commonwealth v. Santana, 477 Mass. 610, 616 (2017).

The crime of receiving stolen property requires proof that: (1) the property in question was stolen; (2) the defendant knew that it was stolen; and (3) the defendant knowingly had the stolen property in his possession. See G. L. c. 266, § 60 ; Commonwealth v. Namey, 67 Mass. App. Ct. 94, 97 (2006). All three elements may be established by circumstantial evidence. See Commonwealth v. Cromwell, 53 Mass. App. Ct. 662, 668 (2002). Proof that the defendant actually possessed the stolen goods is not required, rather possession "may be joint and constructive." Namey, supra at 98 n.7. Moreover, "if the defendant's possession of property exhibits 'peculiarities' and 'occur[s] in a context fraught with suspicion,' a [fact finder] may draw inferences that ... the defendant had received and was holding, and knew he was holding, stolen goods." Cromwell, supra, quoting from Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595, 596 (1988). The information in the police report was sufficient to establish that the defendant received stolen property by a preponderance of the evidence.

First, there was sufficient circumstantial evidence to establish that the defendant had constructive possession of the stolen merchandise. Constructive possession requires proof that the defendant had "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004), quoting from Commonwealth v. Brzezinski, 405 mass. 401, 409 (1989). Although "presence in an area where contraband is found 'alone cannot show the requisite knowledge, power, or intention to exercise control ... presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency.' " Brzezinski, supra at 409-410, quoting from Commonwealth v. Albano, 373 Mass. 132, 134 (1977). Here, the defendant was not merely present in the car. The evidence showed that in addition to his presence: (1) at least some of the stolen goods were placed in the vehicle by his associate shortly after they emerged from Old Navy together; (2) he was sitting in close proximity to the goods, which were plainly visible on the back seat; and (3) he possessed two different tools often used to remove retail security devices. A fact finder could infer from these circumstances that the defendant was not only aware of the goods, but also that he had the ability and intent to exercise control over them.

Second, the defendant's possession of the goods was sufficiently "fraught with suspicion" that a fact finder could infer that the goods were stolen, and that the defendant knew it. Cromwell, supra, quoting from Kirkpatrick, supra. The suspicious attending circumstances included the following: at least some of the goods-the clothes from Old Navy-were taken from the mall on the evening of the arrest; those clothes were stowed in the female's hand bag when the couple departed from the store; both the defendant and the female possessed tools often used to remove security devices; and a witness from the mall reported to the police and public safety officers that she had seen the couple engaging in furtive behavior. See Kirkpatrick, supra at 600 ("The inference permitted by possession of recently stolen property is a strong one. It may act as a substitute for direct proof of guilty knowledge"). Combined with the store manager's earlier observation and report that the defendant and his companion "did try to steal merchandise from the store," these peculiarities, considered with the facts listed above, were sufficient to prove by a preponderance of the evidence that the defendant received stolen property. Therefore, the order revoking his probation is affirmed.

Order revoking probation affirmed.

      The police report did not address the abuse prevention order charge.

      The store's manager reported to Officer Sanna that "[the couple] did try to steal merchandise from the store." She further told Officer Grady that she saw the female drop a shirt and its security device, which had been removed, before placing the shirt back on the rack and reattaching the security device.

      Officer Grady also discovered a magnet in the female's hand bag, which he knew to be another tool used to remove security devices.

      The judge memorialized, in the probation hearing finding and disposition form, that she found the defendant in violation of probation based upon the new crimes of "shoplifting" and "receiving stolen property" in an amount greater than $250. Thus, the alleged violation of the terms of an abuse prevention order did not serve as a basis for the judge's finding of a probation violation. Accordingly, the lack of evidence at the hearing of a violation of the abuse prevention order is not relevant to our resolution of the defendant's appellate claim.

      In his brief, the defendant specifies that he "only challenges [the judge's] finding of violation; he does not dispute that it would have been within the judge's discretion to revoke his probation and sentence him to six months in the house of correction if she'd properly found him in violation."

      The defendant does not challenge the judge's finding that the hearsay contained within the police report was substantially reliable, and thus properly admitted. See Commonwealth v. Patton, 458 Mass. 119, 133 (2010).

      The evidence was also sufficient to support a finding, by a preponderance of the evidence, that the defendant had violated the conditions of his probation by shoplifting on a theory of joint venture. See Commonwealth v. Torrealba, 316 Mass. 24, 29 (1944). Even assuming, arguendo, that the evidence was insufficient to sustain this finding, we would nonetheless affirm the order revoking the defendant's probation for the reasons discussed supra. See Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976) ("Any conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation").


text:
    COMMONWEALTH v. Hemchand DEODAT.
    16-P-1218
    Appeals Court of Massachusetts.
    Entered: February 13, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Hemchand Deodat, was convicted of the following: assault by means of a dangerous weapon (knife); assault and battery on a household member; and assault and battery by means of a dangerous weapon (ABDW), to wit a baseball bat. On appeal, the defendant claims error from evidentiary rulings by the judge, namely the admission of opinion evidence as to the commonality of domestic violence victims delaying reporting abuse. The defendant also challenges certain remarks by the prosecutor in her closing. We affirm.

1. Background. We summarize the facts that the jury could have found, reserving some details for discussion of the legal questions before us. At all relevant times, Jane Smith had been engaged to marry the defendant; the couple lived together in a Framingham apartment.

On January 19, 2015, the defendant woke Smith, ordering her to clean her son's bedroom (her son had just moved out). Smith said to the defendant that it was 2:00 A.M., that she "had to get up for work at [5:00 A.M.]," and that she would clean the room after her shift. She turned back over in bed to sleep. While she was asleep, the defendant hit Smith with a baseball bat. Smith asked the defendant "what was wrong, and why was he doing it." While the defendant was hovering over Smith with the bat in his hand, he told her to "[g]et the fuck up and clean the room right now." Smith retreated to another room in the apartment to avoid being hit again; the defendant pursued her. She tried to run down a staircase to the front door, however, the defendant "pulled [Smith] back by [grabbing her] hair," causing her to fall on the bottom step. He put a knife to her throat. The defendant pulled out "lots of" Smith's hair and threatened to kill her if she did not get back inside the apartment. Smith went to her son's room and soon thereafter fled from the home and ran to a nearby police substation, but it was closed. Smith, who was barefoot and clad only in a nightgown, went home. She approached the defendant and asked him to "try to work things out" while she looked for a place to live. Two days later, using her cellular telephone's camera, Smith took photographs of her injuries. She did not seek medical treatment.

The Commonwealth offered evidence to show that a separate incident of domestic violence had occurred in April, 2015. On that afternoon, upon returning home from work, Smith laid down to rest. She awoke when the defendant struck her with his cane. He told her: "[G]et the fuck up or there's going to be some bloodshed." He demanded that she cook his dinner.

On May 14, 2015, Smith and the defendant traveled to the South Middlesex Opportunity Council (SMOC) to apply for fuel assistance. At SMOC, in the presence of others, the defendant cursed and berated Smith. When Smith "put [her] hands up and said [she could not] take it anymore," SMOC personnel would not let her leave. They had her speak with a domestic violence representative and then with Framingham police Detective Stacey Macaudda. Smith, while crying and shaking, explained that she and the defendant had "agreed" to try to work things out until she found "somewhere" to live, but the abuse had continued.

2. Discussion. a. Opinion evidence. The defendant argues that the Commonwealth should not have been allowed to offer opinion evidence from Detective Macaudda on the issue of Smith's delay in reporting the incidents.

On direct, the Commonwealth briefly apprised the jury of Detective Macaudda's experience and training as an investigator of domestic violence crimes. Then, immediately after the judge and counsel conferred outside the presence of the jury, the detective opined: it is "absolutely common" for victims of domestic violence to report crimes later than they occur. Relying on Commonwealth v. Goetzendanner, 42 Mass. App. Ct. 637, 642 (1997), the defendant argues that this was impermissible expert opinion testimony that ought to have been excluded. In Goetzendanner, we held that "the pattern of behavioral and emotional characteristics common to the victims of battering lies beyond the ken of the ordinary juror and may properly be the subject of expert testimony." Ibid. See Commonwealth v. Morris, 82 Mass. App. Ct. 427, 430 (2012). Here, the Commonwealth had failed to identify the detective as an expert in its pretrial submissions and also had not properly qualified her as such at trial. We assume but do not decide that the admission of the detective's "opinion" was error, notwithstanding other mitigating factors: that the contested opinion evidence was brief, succinct, and followed on the heels of an indiscernible sidebar conference. We hold that, assuming there was error, it "did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

First, the opinion testimony did not itself bear on any essential elements of the charged crimes. Rather, Smith's unequivocal testimony recounting in detail the defendant's conduct established all essential elements of the offenses for which the jury found guilt. Smith's account of the harm she had suffered at the hands of the defendant was properly admissible in all respects. Indeed, it was supported by photographic proof of Smith's injuries from the January attack.

Second, the challenged testimony was a fleeting reference about domestic violence victims generally, while there was also case-specific testimony about why Smith came forward when she did. When the defendant spoke to her abusively in front of others at SMOC, personnel at SMOC intervened. Only then, after Smith spoke to a domestic violence representative, did she go to the police. She testified: "I was scared. I was upset. I was nervous. I didn't put it in because I didn't want to get him in trouble. I just wanted to work things out. That's all I've been asking."

Third, the Commonwealth did forgo any further witness commentary as to the particular indicia of battered woman's syndrome. Compare Commonwealth v. Morris, supra at 432-433. Cf. Commonwealth v. Gordon, 87 Mass. App. Ct. 322, 333 n.13 (2015) (noting "complex phenomenon" of domestic violence). Nor did the detective repeat the narrative details presented by Smith herself. Moreover, defense counsel did not raise the lack of notice issue but instead ably cross-examined the detective.

Finally, the jury acquitted the defendant on the ABDW count involving a cane. The jury's rejection of this charge demonstrates that any error in the admission of the detective's opinion did not influence their dispassionate appraisal of the evidence. See Commonwealth v. Montez, 450 Mass. 736, 749 (2008).

b. Other evidentiary matters. The defendant also raises what he has described as "minor" errors: that the jury heard testimony that he was not employed, and that Smith had obtained a restraining order against him. Substantially for the same reasons just discussed, there was neither any error nor any piling-on effect vis-à-vis the opinion evidence.

The Commonwealth is " 'entitled to present as full a picture as possible of the events surrounding the incident itself,' as long as the probative value of the evidence presented is not substantially outweighed by any prejudice to the defendant." Commonwealth v. Martinez, 476 Mass. 186, 191 (2017), quoting from Commonwealth v. Hernandez, 473 Mass. 379, 394 (2015). The defendant's employment status was relevant to corroborate that he could be home at the time of the second attack, a time when many would be at work. It also confirmed Smith's testimony that she asked the defendant for income verification at SMOC and that his abuse followed. In no event was the defendant's unemployment used to cast unfair judgment on the defendant's character. We discern no abuse of discretion in the admission of this evidence.

There was also a passing reference by Detective Macaudda that Smith had obtained a restraining order. This brief statement was, amidst the whole trial testimony, inconsequential. The judge's instructions to the jury, delivered at the start of the trial and similarly in his final charge, made it quite plain that "the [criminal] complaint itself is not evidence of the defendant's guilt," and "[t]he fact that a complaint issued against the defendant should not be considered by [them] at all as any evidence of his guilt whatsoever in [their] deliberations." Here, the brief testimonial reference to a restraining order was linked to the criminal complaint, see note 9, supra, but the former was not admitted in evidence nor made mention of at any later time. Contrast Commonwealth v. Foreman, 52 Mass. App. Ct. 510, 513-515 (2001) (restraining order documentation admitted in evidence). We presume that the jury adhered to the judge's instructions. Their verdict strongly suggests as much.

c. Prosecutor's closing. The defendant contends that the prosecutor improperly vouched for Smith's credibility in her closing argument to the jury. The prosecutor stated:

"Now, you heard a lot about how [Smith] didn't-from the defense attorney how [Smith] didn't remember what the knife looked like in May when she reported the incident, but she testified to you today and she told you today what it looked like.
"And while it might [not] make sense that many months down the line how does your memory become better, a lot of times, especially with victims of such violent crimes, things settle down later. It settled down to her. She described the knife to you. She told you she hid all the knives because she was so afraid of the defendant."

Because the defendant did not object to this argument by the prosecutor, we review the alleged error for whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Jones, 471 Mass. 138, 148 (2015). The defendant has a considerable burden to demonstrate that an alleged error, or combination, by the prosecutor in closing argument, caused a substantial risk of a miscarriage of justice. Commonwealth v. Amirault, 424 Mass. 618, 650-651 (1997). "A mere possibility of a different outcome will not satisfy this burden." Id. at 652. We have considered the prosecutor's closing remarks, in the context of the entire case, including the judge's charge. We conclude that no substantial risk of a miscarriage of justice was created.

Judgments affirmed.

      The jury acquitted the defendant of an ABDW charge that involved a cane.

      A pseudonym.

      Before approaching him, Smith took the kitchen knives, put them in a bag, and hid "them" in the snow outside.

      The appellate record includes only the exhibit list, not the photographs admitted in evidence and shown to the jury.

      The discussion was "indiscernible" to the court transcriber.

      On redirect, the detective added that in "many of [her] cases that involve domestic violence, it takes time before somebody has the courage or the strength or the ability to come forward ... [s]o a lot of times [her] cases are reported much after the incident has taken place."

      The defendant also relies on three out-of-State cases: Venalonzo v. People, 388 P.3d 868, 871, 880-881 (Col. 2017) (in case alleging defendant committed sexual assault on child, forensic interviewer offered impermissible expert testimony in guise of lay opinion without notice to defendant; error prejudicial); State v. Gonzalez, 150 N.H. 74, 77-80 (2003) (testimony about victim recantations was expert testimony erroneously admitted as lay testimony; error harmless); State v. Duran, 343 P.3d 207, 210-213 (N.M. 2014) (testimony by one who interviewed child disclosing sexual abuse was expert, not lay, opinion testimony; admission not harmless). These decisions are not controlling but, more importantly, each engages in the analysis we undertake here, i.e., whether the admission of the testimony was harmless. This is a fact-specific inquiry.

      The defendant concedes that neither these errors nor the alleged improper closing argument, discussed infra, would alone warrant a new trial.

      On direct, Detective Macaudda testified: "I conducted an investigation into domestic-violence charges and eventually did take charges out on someone, and I assisted [Smith] in getting a restraining order for protection."


text:
    COMMONWEALTH v. PADRAIC P., a juvenile.
    16-P-1318
    Appeals Court of Massachusetts.
    Entered: February 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Juvenile Court, the juvenile was convicted of two counts of rape and one count of indecent assault and battery on a person with an intellectual disability, all as a youthful offender, and was adjudicated delinquent on one count of assault and battery on a person with an intellectual disability. The juvenile appeals, claiming the judge erred by: (1) finding the victim competent; (2) excluding portions of the victim's treatment records; (3) precluding testimony as to the victim's general reputation for truthfulness; (4) excluding evidence of the victim's prior sexual knowledge; (5) failing to properly instruct the jury on serious bodily harm; and (6) failing to enter a required finding of not guilty on the youthful offender portions of the indictments. The juvenile also contends that the prosecutor presented misleading evidence that impaired the integrity of the grand jury proceedings. We affirm.

Background. The jury could have found the following facts. The victim, whom we shall call Andrew, is a cognitively impaired man with an IQ score of forty-four. As a result of his intellectual disability, Andrew is like "a young child ... stuck in a young man's body." In 2004, he became a client of the Department of Developmental Services (DDS). In July, 2011, he was placed in adult foster care. Nearly two years later, in September, 2013, Andrew disclosed to his mother that the juvenile, the grandson of Andrew's foster parents, was sexually abusing him.

When Andrew first moved to the foster home, he was twenty-four years of age and the juvenile was fifteen years of age. While his foster parents were at work, Andrew was entrusted to the care of the juvenile. The abuse started soon thereafter. Andrew, who described the conduct as "exercise," told his mother that he and the juvenile "exercised" in the basement, the juvenile's bedroom, the laundry room bathroom, and the back porch. The juvenile would take off Andrew's clothing, without his permission, and would make him perform oral sex. The juvenile also penetrated Andrew anally on multiple occasions. During one such incident, the juvenile grabbed Andrew's legs and dragged him off the bed to the floor. Andrew did not report what was happening because he was afraid that he would get in trouble.

Discussion. 1. Andrew's competency. The juvenile challenges the trial judge's determination, following a voir dire hearing, that Andrew was competent to testify. He also claims that the judge erred in denying his motion for an independent evaluation of Andrew pursuant to G. L. c. 123, § 19.

The determination of competency is a factual one and is "peculiarly within the trial judge's discretion." Commonwealth v. Jiminez, 10 Mass. App. Ct. 441, 443 (1980). In determining the competency of a witness, the judge conducts a two-prong test: "(1) whether the witness has the general ability or capacity to observe, remember, and give expression to that which [he] ha[s] seen, heard, or experienced; and (2) whether [the witness] has understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment." Commonwealth v. Trowbridge, 419 Mass. 750, 754-755 (1995) (quotation omitted). See G. L. c. 233, § 20. "A judge's determination of competency is discretionary and will seldom be faulted on appellate review," except where "the judge applies an incorrect legal standard." Trowbridge, supra at 755.

Here the judge did not abuse her discretion in finding that Andrew was competent to testify. She not only heard Andrew and observed his demeanor during the competency hearing and the trial, but also gave the juvenile wide latitude to present additional witnesses during the voir dire hearing. Based on Andrew's testimony, the judge determined that he understood the difference between the truth and a lie, and was generally able to perceive events. Because the trial judge has considerable discretion and was in the best position to assess Andrew's competency, we will not disturb her finding. See Commonwealth v. Tang, 66 Mass. App. Ct. 53, 63 (2006).

Similarly, the judge's denial of the juvenile's request for an independent evaluation of Andrew pursuant to G. L. c. 123, § 19, was not an abuse of discretion. See Trowbridge, supra at 755. An independent examination is necessary only where there is a "compelling need" and the examination "will produce substantial evidence bearing on the witness's testimonial capacity." See Commonwealth v. Gibbons, 378 Mass. 766, 773 (1979). The judge's decision was not "a clear error of judgment ... such that the decision fell outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted).

2. Exclusion of Andrew's treatment records. Prior to trial, the juvenile filed a motion in limine to admit Andrew's treatment records from various programs he attended, which was allowed in part. After a review of the records, the judge ordered that records related to specific instances of hallucination or storytelling were admissible. The juvenile contends that such a limitation was arbitrary and violated his confrontation right where the case rested entirely on the credibility of Andrew. We disagree.

We review the judge's decision to determine whether she abused her discretion. Commonwealth v. Sharpe, 454 Mass. 135, 143 (2009). The judge examined each record individually to determine whether it should be admitted or excluded. She distinguished between statements in the record that were about treatment and generalized statements or notations without context. Contrast Commonwealth v. Polk, 462 Mass. 23, 28-29 (2012) (defendant purported to offer expert testimony to give context to treatment records). After careful examination, she excluded those records that were vague, lacked context, and contained "conclusory statements without further information about the basis for the statements," as their "probative value ... was substantially outweighed by the danger of unfair prejudice." See Commonwealth v. Dwyer, 448 Mass. 122, 129 (2006).

The judge acted within her discretion in her careful and deliberate ruling, which ensured that the juvenile could present substantial evidence regarding Andrew's credibility while excluding vague evidence that would have confused the jury. Moreover, the juvenile suffered no prejudice. Indeed, a significant portion of Andrew's otherwise privileged mental health records were admitted, and the juvenile was allowed to cross-examine Andrew and others based on the records.

3. Evidence of Andrew's reputation for truthfulness. The juvenile contends that it was error for the judge to preclude testimony of Andrew's case manager regarding his knowledge of Andrew's general reputation for truthfulness. We review to determine whether the judge abused her discretion. Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871 (1980). Following a voir dire hearing, the judge properly precluded this evidence as the witness lacked a sufficient basis to characterize Andrew's reputation for honesty, and the testimony did not establish a sufficiently numerous group from which to draw a conclusion about Andrew's reputation. "A judge has discretion to exclude evidence of reputation if [she] determines that it is based on the opinions of too limited a group." Commonwealth v. Gomes, 11 Mass. App. Ct. 933, 933 (1981). Moreover, judges must be particularly cautious in admitting character evidence when, as is the case here, they are faced with a mentally impaired victim. See Commonwealth v. Despres, 70 Mass. App. Ct. 645, 650-651 (2007). The judge did not abuse her discretion.

4. Evidence of Andrew's prior sexual knowledge. The juvenile next claims that the judge erred in excluding evidence of Andrew's prior sexual knowledge, specifically his knowledge and practice of masturbation. He contends that if Andrew understood and enjoyed sexual gratification, evidence of his prior sexual knowledge would allow the jury to infer that Andrew consented to the rapes. General Laws c. 233, § 21B, seeks to avoid putting a victim's sexual practices on trial in an effort to discredit his claims of abuse. See Commonwealth v. Fitzgerald, 412 Mass. 516, 523 (1992). Where specific instances of sexual conduct are proffered for a permissible purpose, a judge must still determine whether the evidence's weight and relevance outweigh its prejudicial effect. See Commonwealth v. Parent, 465 Mass. 395, 405 (2013).

Here, the judge allowed the juvenile to ask Andrew and his mother about a conversation the two of them had several months prior to the first complaint. The judge did, however, exclude evidence of Andrew's masturbation practices. Andrew's knowledge of masturbation does not equate with his understanding of anal or oral intercourse. This is particularly true where consent was not an issue on appeal. Contrast Commonwealth v. Reid, 400 Mass. 534, 541-542 (1987) (evidence of masturbation meant to explain physical feature of child victim). The judge did not abuse her discretion where evidence of masturbation would have resulted in the "harassment and ... humiliation" of Andrew. Commonwealth v. Joyce, 382 Mass. 222, 228 (1981) (quotation omitted).

5. Jury instructions. The juvenile argues that the judge erred in instructing the jury on the third element of the youthful offender indictments-the threat or infliction of serious bodily harm. The juvenile requested that the judge instruct the jury that serious bodily harm is permanent disfigurement, loss or impairment of a bodily function, or a substantial risk of death. Instead the judge instructed the jury as follows:

"The term serious bodily harm is not specifically defined in the youthful offender statute. It is not the inherent nature of the alleged crime that you should consider in making this determination, but rather the specific facts of the case before you. In determining what constitutes the infliction or threat of serious bodily harm, the courts have held that sexual penetration alone does not in every circumstance create a threat of serious bodily harm. The act of penetration under certain-certain circumstances can be sufficient evidence of threat or inflictions of serious bodily harm based on the invasive nature of penetration. In making a determination whether the Commonwealth has proved this element beyond a reasonable doubt, you may consider factors such as whether the juvenile defendant held a position of authority over the complainant such as in the case of a parent or a teacher, etcetera, or whether there is an age difference between the juvenile defendant and the complainant, and ... the vulnerability of the complaining witness."

Because the issue was properly preserved, we review to determine whether there was error, and if so whether it was prejudicial. Commonwealth v. Wolfe, 478 Mass. 142, 144 (2017). No such error exists here.

While the statute itself does not define serious bodily harm, there are no cases that require the type of instruction or stringent definition that the juvenile sought. Instead, the Supreme Judicial Court has looked to the totality of the circumstances, based on the ordinary understanding of the serious bodily harm, to determine whether the element is satisfied. See, e.g., Commonwealth v. Clint C., 430 Mass. 219, 226 (1999) (serious bodily harm element satisfied based on juvenile's position of authority over victim, age difference, and invasive nature of the sexual act); Commonwealth v. Washington W., 462 Mass 204, 210 (2012) (serious bodily harm satisfied where juvenile pushed victim to ground to be penetrated). We have done so as well. See Commonwealth v. Todd, 87 Mass. App. Ct. 780, 784 (2015) (authority of juvenile over victim can be considered when assessing threat of serious bodily harm). Here, the juvenile, who was Andrew's caretaker, took advantage of the fact that Andrew was child-like and vulnerable particularly where Andrew did not appear to understand that he was being sexually assaulted. The trial judge properly instructed the jury.

6. Sufficiency of the evidence. When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713, cert. denied, 134 S. Ct. 2855 (2014). Over the course of two years, the juvenile repeatedly raped Andrew orally and anally. During one assault, the juvenile dragged Andrew off the bed to the floor. While the judge found that this fact alone was insufficient to prove the youthful offender portion of the assault and battery indictment, it does not preclude its consideration with respect to the rape indictments. See N.M. v. Commonwealth, 478 Mass. 89, 95-96 (2017). There was no error in the judge's determination that there was sufficient evidence for the jury to find that the juvenile's conduct created the threat of serious bodily harm.

7. Misleading the grand jury. The crux of the juvenile's contention on this issue centers around the theory that the Commonwealth excluded records and presented testimony that as a whole improperly vouched for Andrew's credibility, thereby misleading the grand jury in order to secure indictments. This argument is without merit.

A "defendant bears a heavy burden to show impairment of the grand jury proceeding." Commonwealth v. LaVelle, 414 Mass. 146, 150 (1993). Dismissal of an indictment based on such impairment requires proof that "(1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict." Commonwealth v. Silva, 455 Mass. 503, 509 (2009). The juvenile's claim fails on all three elements.

A witness from DDS testified that, from her review of the records, she did not think that Andrew had a history of lying or a tendency to exaggerate. To the extent that this evidence was later determined to be inaccurate, there was no intent on the part of the prosecutor to mislead the grand jury for purposes of securing an indictment. See Commonwealth v. Champagne, 399 Mass. 80, 84 (1987). Indeed, exculpatory records that presumably would have undermined the credibility of the witness were secured after the juvenile filed his so-called Dwyer motions and therefore were not within the prosecutor's possession at the time of the grand jury proceedings. Additionally, the Commonwealth had no reason to know, as the juvenile's trial counsel acknowledged, about a 2008 police report which indicated that a police officer thought that Andrew could not distinguish between reality or fantasy. In fact, the Commonwealth repeatedly drew the grand jury's attention to Andrew's lies and inconsistent statements, even though the Commonwealth is "not required to present all possibly exculpatory evidence to a grand jury." Commonwealth v. Connor, 392 Mass. 838, 854 (1984). Accordingly, there is nothing in the record, taken as a whole, to suggest that the Commonwealth presented evidence to the jury "with the intention of obtaining an indictment," or that the grand jury otherwise "would not have indicted the defendant." Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). To the contrary, the grand jury had the opportunity to evaluate Andrew's testimony and compare it to the testimony of other witnesses. The motion was properly denied.

Judgments affirmed.

Adjudication of delinquency affirmed.

      The juvenile was indicted as a youthful offender for three counts of rape, one count of indecent assault and battery on a person with an intellectual disability, and one count of assault and battery on a person with an intellectual disability. At the close of the Commonwealth's case, the juvenile moved for required findings of not guilty on all counts. The judge allowed the motion as to one count of rape (finger in the anus) and the youthful offender portion of the assault and battery indictment.

      We decline the juvenile's invitation to adopt a heightened standard of competency in assessing a witness's ability to perceive.

      The juvenile conflates competency and credibility. The fact that Andrew may have had difficulty differentiating between reality and fantasy goes to credibility, which is solely for the fact finder to assess and was squarely placed before the jury. See Commonwealth v. Figueroa, 413 Mass. 193, 203 (1992) ("[W]here the complaining witness is suffering from mental impairment... evidence of how that impairment might affect [his] capacity to perceive, remember and articulate the alleged events ... can be used to impeach [his] credibility").

      The judge excluded records where a nurse or staff simply checked off boxes that were labeled "hallucination" or "delusions" without further explanation. By contrast, she admitted statements in which either Andrew or his mother indicated that Andrew saw things that were not there or admitted to making up stories. A sample of these statements, admitted at trial, include: "[Andrew] told his SW that he has been seeing UFOs but then stated he doesn't know what a UFO is"; "[Andrew] arrived [at] program [with] multiple complaints re: van drivers and sev. other participants ... also admits 'I know I make up stories.' "

      During oral argument the juvenile's attorney noted that consent was not an issue on appeal.

      This is the definition for serious bodily injury (but not serious bodily harm) for a number of unrelated criminal statutes. See, e.g., G. L. c. 265, § 13A ; G. L. c. 265, § 13K(a ) ; G. L. c. 265, § 13L ; G. L. c. 265, § 15A(d ) ; G. L. c. 269, § 14(a ). Numerous other statutes use different definitions of serious bodily injury. See, e.g., G. L. c. 18C, § 1 ; G. L. c. 21L, § 1 ; G. L. c. 119, § 21. Many other statutes (including some criminal statutes) use the term without definition. See, e.g., G. L. c. 19C, § 5 ; G. L. c. 112, § 129A(c )(2), (3) ; G. L. c. 112, § 135 ; G. L. c. 112, § 135A ; G. L. c. 123, § 36B(1) ; G. L. c. 233, § 23F ; G. L. c. 265, § 22(a ) ; G. L. c. 266, § 102A ½ (b ) ; G. L. c. 277, § 39 ; G. L. c. 279, § 69(a ).

      Trial counsel acknowledged that he obtained the report postindictment, pursuant to a public records request and affirmed that he was not alleging that the Commonwealth had knowledge of the report's existence.


text:
    COMMONWEALTH v. Francisco PORTILLO.
    17-P-348
    Appeals Court of Massachusetts.
    Entered: February 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Francisco Portillo, appeals from the denial of his motion for a new trial in District Court. In his motion he sought to withdraw his 2008 admission to sufficient facts based on a claim that plea counsel failed to advise him of the immigration consequences of his plea. See generally Padilla v. Kentucky, 559 U.S. 356 (2010). We affirm.

Background. On July 23, 2008, the defendant admitted to sufficient facts with respect to a three-count criminal complaint charging open and gross lewdness, possession of a Class B substance, and possession of a Class D substance. The plea judge accepted the plea and continued the case without a finding for eighteen months. The complaint was ultimately dismissed on January 25, 2010.

More than six years later, in July, 2016, the defendant filed a motion for a new trial alleging that plea counsel had rendered ineffective assistance by failing to explain that his admission to sufficient facts would subject him to mandatory removal from the United States. After an evidentiary hearing, the motion judge (who was not the plea judge) denied the motion with the following margin endorsement: "After hearing, and based upon the testimony at the hearing and the submissions in writing of the parties, motion DENIED."

Discussion. As a threshold matter, we address the defendant's contention that he is entitled to reversal because the motion judge did not prepare written findings of fact. He correctly observes that under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), "[t]he judge must make findings of fact necessary to resolve the defendant's allegations of error of law in a motion for a new trial." Commonwealth v. Torres, 469 Mass. 398, 403 (2014). However, "[a] judge's failure to make findings required by rule 30(b) is 'not fatal ... where the ultimate conclusion is clearly evident from the record,' Commonwealth v. Lanoue, 392 Mass. 583, 586 n.2 (1984), or where we are satisfied that 'on review of the whole case manifest injustice would [not] result,' Commonwealth v. Preston, 393 Mass. 318, 322 n.4 (1984)." Ibid. See Commonwealth v. Tirrell, 382 Mass. 502, 510 n.10 (1981) ("Although failure to make specific findings appears to contravene [ rule] 30 [b], remand is unnecessary in this case. The record as a whole supports the judge's conclusion").

As presented to the motion judge, the defendant's claim boiled down to two issues: whether the defendant had shown that counsel failed to give him adequate advice with respect to the immigration consequences of his plea, and whether he would have placed particular emphasis on those consequences in deciding whether to admit to sufficient facts. To be entitled to relief, the defendant needed to prevail on both of these issues. See Commonwealth v. Henry, 88 Mass. App. Ct. 446, 452 (2015) ; Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017). The judge's ruling, "based upon the testimony at the hearing," where the defendant was the only witness, necessarily implies that the judge determined that the defendant had failed to carry his burden with respect to one or both of these issues. Accordingly, we consider whether the record supports the judge's conclusion, and "whether the judge abused [her] discretion or committed a significant error of law" in denying the motion. Commonwealth v. Cotto, 471 Mass. 97, 105 (2015).

Performance prong. To prevail on the performance prong of his ineffective assistance claim, the defendant was required to demonstrate that plea counsel failed to inform him, "in language that the client could comprehend," of the dire consequences of his plea. Commonwealth v. DeJesus, 468 Mass. 174, 181 (2014). See Henry, supra at 454. In this regard, the only evidence the defendant presented was his own affidavit, in which he averred that his attorney "knew I was a green card holder but never told me that I could be automatically deported by admitting to sufficient facts and getting a continuance without a finding." During cross-examination, the defendant stated that he did not remember his conversations with police officers at the time of his arrest and did not remember admitting anything during plea proceedings.

Based on the paucity of the evidence concerning the advice that plea counsel gave, or did not give, as well as the defendant's inability to recall the events surrounding his admission to sufficient facts, the motion judge would have been warranted in finding that the defendant had failed to meet his burden of proving that plea counsel gave him deficient advice concerning the immigration consequences of the plea.

Prejudice prong. Even if plea counsel had failed to explain the consequences of the defendant's plea, "[a] showing that plea counsel's advice was constitutionally deficient does not alone entitle the defendant to relief, however; the defendant must also demonstrate prejudice." Commonwealth v. Cano, 87 Mass. App. Ct. 238, 246 (2015). In the context of a Padilla claim, "[t]he defendant has three avenues for satisfying this requirement." Henry, supra at 455. He can show (1) that he had a viable defense to the charges, (2) a reasonable probability of negotiating a plea bargain that would not have exposed him to immigration consequences, or (3) "the presence of 'special circumstances' that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Ibid., quoting from Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011). At the motion hearing, as on appeal, the defendant pressed only a special circumstances argument.

To demonstrate special circumstances, the defendant stated in his affidavit (dated December 15, 2015) that he came to the United States from El Salvador in 1997, that he had been a lawful permanent resident since 2006, and that his mother is a United States citizen and his father is a lawful permanent resident. He testified that he had a seven year old child in 2008. In argument, motion counsel represented (without any evidentiary support) that the child is still here and that the defendant currently has a "United States citizen girlfriend," who was his girl friend at the time of the plea, and that "they are now engaged."

The defendant offered only generalizations about his family's immigration and citizenship status in December, 2015. He offered almost no evidence concerning the calculus he confronted when he decided to admit to sufficient facts in 2008. See DeJesus, supra at 184 (noting that in assessing plea offer, "a noncitizen defendant confronts a very different calculus than that confronting a United States citizen"). The motion judge was warranted in concluding that the defendant failed to show that in 2008 he would have placed particular emphasis on immigration consequences.

At the time of the hearing on the defendant's motion, the showing required to prevail on a Padilla claim was well established. Nonetheless, the defendant's proof on both aspects of his claim was insubstantial. We discern no abuse of discretion in the judge's denial of the motion.

Order denying motion for a new trial affirmed.

      This case is unlike Commonwealth v. Mercado, 474 Mass. 80, 82-83 (2016), where, in the absence of findings, the appellate court could not be certain whether the judge had denied the motion for a new trial on the merits based on credibility assessments or based on the erroneous legal conclusion that Padilla did not apply retroactively to the defendant's guilty plea.

      The defendant did not produce an affidavit of plea counsel, the absence of which, "without an explanation why such an affidavit could not be obtained[,] is a negative factor" in assessing his claim. Lys, 91 Mass. App. Ct. at 722. At the time of the motion hearing, plea counsel had been suspended from the practice of law. The defendant's motion counsel represented that he was unable to reach plea counsel because his telephone had been disconnected. We need not decide whether this was an adequate explanation, as the motion judge's conclusion is well supported even without weighing this factor against the defendant.


text:
    COMMONWEALTH v. Byron SOLIS.
    17-P-231
    Appeals Court of Massachusetts.
    Entered: February 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his motion to withdraw his plea without a hearing. He raises two arguments on appeal. First, he argues that his motion raised a substantial issue of ineffective assistance of plea counsel such that it should not have been denied without an evidentiary hearing. Second, he argues that there is a reasonable probability that a reasonable person in his circumstances would have gone to trial had plea counsel given constitutionally effective advice concerning the immigration consequences of a plea. We affirm.

We treat a motion to withdraw a plea the same as we would a motion for new trial, reviewing "whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016), quoting from Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). "Particular deference is to be paid to the rulings of a motion judge who [,as here,] served as the [plea] judge." Id. at 6, quoting from Commonwealth v. Scott, 467 Mass. 336, 344 (2014). "A judge may make the ruling based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a 'substantial issue' that is supported by a 'substantial evidentiary showing.' " Sylvester, supra, quoting from Scott, supra. A defendant who claims ineffective assistance of counsel must establish that (1) the "behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" and, (2) as a result, the defendant was deprived "of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant argues plea counsel was ineffective because counsel did not advise him that his plea could affect his future ability to seek discretionary relief from deportation. At the outset, we note two important facts. First, this is not a case where plea counsel gave no immigration advice at all or where the immigration consequences were clear. Contrast Padilla v. Kentucky, 559 U.S. 356 (2010). Instead, plea counsel averred that, although he had no specific recollection of the defendant's case, it was his practice at the time to read the entire immigration warning from the plea form to his clients. Second, at the time of his plea in 2001, the defendant was not entitled to discretionary relief under 8 U.S.C. § 1229b(b) (2012), about which relief, he now contends (fifteen years later), he was not advised. To qualify for discretionary relief under 8 U.S.C. § 1229b(b), a person must "establish that: (1) he has been physically present in the United States for a continuous period of not less than ten years; (2) he has not been convicted of certain enumerated crimes; ... (3) his removal would result in exceptional and extremely unusual hardship to a qualifying family member[,]" and (4) he has "'been a person of good moral character' during the ten years immediately preceding his application." Da Silva Neto v. Holder, 680 F.3d 25, 28, 28 & n.4 (1st Cir. 2012), quoting from 8 U.S.C. § 1229b(b)(1)(B). At the time of his plea, the defendant did not meet these requirements. He had been in the United States only two years. And he does not contend, let alone show, that his removal from the country in 2001 would have resulted in an extremely unusual hardship to a qualifying family member.

Even were we to accept the defendant's proposition that plea counsel had an obligation to give immigration advice concerning a discretionary defense to deportation to which the defendant was not then entitled and for which he may or may not have qualified in the future, the defendant failed to show that (1) there was a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial," and (2) "a decision to reject the plea bargain would have been rational under the circumstances." Commonwealth v. Mercado, 474 Mass. 80, 83 (2016), quoting from Commonwealth v. Clarke, 460 Mass. 30, 47 (2011). "To prove the latter proposition, the defendant bears the substantial burden of showing that (1) he had an 'available, substantial ground of defence' that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of 'special circumstances' that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Clarke, supra at 47-48 (quotation and footnote omitted). The judge concluded that the defendant had failed to meet his burden, a conclusion that was well within her discretion.

First, although the defendant contends he had a substantial ground of defense to the malicious destruction of property charge because he was too intoxicated to form the requisite intent, the sole evidence of the defendant's intoxication was his own affidavit, which the judge was free to "reject as not credible," as she implicitly did here. Commonwealth v. Grant, 426 Mass. 667, 673 (1998).

Next, the judge could conclude (as she did) that a different plea bargain could not have been negotiated at the time. The only more favorable disposition the defendant could have received was a dismissal and, given that the Commonwealth was seeking a guilty finding, the judge was entitled to find it is unlikely the Commonwealth would have agreed to dismiss the charges. "Most importantly, no one was in a better position than the motion judge, who was also the plea judge, to know [a different disposition was not possible]." Commonwealth v. Lastowski, 478 Mass. 572, 577 (2018).

Finally, as the judge found, the defendant failed to prove any special circumstances existed at the time of the plea. At that time, the defendant had been in the country for only two years and lived with his girl friend. Contrast Commonwealth v. DeJesus, 468 Mass. 174, 184 (2014) (special circumstances existed where a defendant "had been in the country since he was eleven years old, his family was in Boston, and he had maintained steady employment in the Boston area"); Commonwealth v. Lavrinenko, 473 Mass. at 57 (defendant's status as a refugee is a special circumstance).

For the reasons set forth above, we conclude that the motion judge did not abuse her discretion in denying the motion.

Order denying motion to vacate plea affirmed.

      The defendant styled his motion as one to vacate his conviction, but it is more accurate to characterize it as a motion to withdraw his plea; that is accordingly how we refer to it in this decision. In 2001, the defendant was charged with disturbing the peace, G. L. c. 272, § 53, and malicious destruction of property over $250, G. L. c. 266, § 127. He pleaded to sufficient facts, and the charges were continued without a finding for one year with unsupervised probation, at the conclusion of which they were dismissed.

      The specific language was, "I understand that if I am not a citizen of the United States, the acceptance by this court of my plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization ...." We recognize that the attorney's obligation to advise his client is distinct from that of the judge, and we do not mean to imply that reading the plea form alone is sufficient to satisfy the attorney's obligation.

      "The applicant cannot demonstrate good moral character if he was convicted of a [crime involving moral turpitude] during that ten-year period." Da Silva Neto, supra at 28. The Court of Appeals for the First Circuit has determined that the crime of malicious destruction of property over $250 is a crime involving moral turpitude. Id. at 33.

      The defendant makes no argument regarding an available defense to the charge of disturbing the peace.

      The defendant also argues that it was error for the motion judge to adopt the Commonwealth's proposed findings of fact and rulings of law verbatim. Although, as we have often stated, it is better practice not to adopt wholesale proposed findings and analysis offered by a party, it is not necessarily error to do so. Here, the motion judge also was the plea judge, and her findings were fully supported by the record.


text:
    COMMONWEALTH v. Vladimir MARCELLUS.
    16-P-559
    Appeals Court of Massachusetts.
    Entered: February 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his conviction, after a jury trial, of operating a motor vehicle while under the influence of alcohol, G. L. c. 90, § 24(1)(a )(1). His sole argument on appeal is that his motion to suppress was erroneously denied. We affirm.

When reviewing a motion to suppress, we ordinarily "accept the judge's subsidiary findings of fact absent clear error." Commonwealth v. Tyree, 455 Mass. 676, 682, (2010), citing Commonwealth v. Colon, 449 Mass. 207, 214, cert. denied, 552 U.S. 1079 (2007). Here, however, the judge made no explicit findings. Instead, he denied the motion to suppress in a margin endorsement, noting only "well-being" as the reason for the decision. We understand this notation to mean that the judge concluded that any seizure or search was justified under the community caretaking doctrine. But the judge should have made subsidiary findings to support this ultimate conclusion. In certain circumstances, the absence of subsidiary findings of fact will necessitate a remand for findings. See Commonwealth v. Isaiah I., 448 Mass. 334, 337-338 (2007). The defendant does not argue that a remand is necessary here. Nor, after carefully reviewing the defendant's arguments and the record, do we think remand is necessary. As set out further below, the material facts are undisputed and the judge credited the witness through whom they were introduced. Perhaps more importantly, the defendant's arguments turn on questions of law subject to our de novo review.

With that background in mind, we summarize the undisputed facts as testified to by the initial responding officer (deputy sheriff), whose testimony the judge's decision implicitly credited. A deputy sheriff driving down Washington Street in Norwell at approximately 1:15 A.M. noticed a car pulled off to the side of the road with its hazard lights flashing. The car was not entirely outside the white fog line and was impeding the travel lane. The defendant was outside the car slumped over by the front left tire. The deputy sheriff assumed there was mechanical trouble with the car and pulled alongside to assist. The defendant did not respond to either of the deputy sheriff's two inquiries as to whether everything was ok. The deputy sheriff approached, helped the defendant to his feet, and then "had to literally hold him up." The defendant was "uneasy on his feet" and nonresponsive. The deputy sheriff formed the opinion that the defendant was intoxicated. He asked the defendant for his license and called for backup, which arrived within minutes.

Although the deputy sheriff believed that he had the authority to arrest the defendant and also intended that the defendant not leave, he did not orally communicate these matters to the defendant. Nonetheless, the defendant contends that the deputy sheriff effectuated an unauthorized warrantless arrest no later than when he asked for, and obtained, the defendant's license. Accepting arguendo that a reasonable person in the defendant's shoes would not have felt free to leave at that juncture, see Commonwealth v. Lyles, 453 Mass. 811, 815-816 (2009), we nonetheless disagree that the deputy sheriff was without authority to stop the defendant in the circumstances.

Commonwealth v. Howe, 405 Mass. 332, 334 (1989), established that a deputy sheriff is authorized to make a warrantless arrest of a person for operating a motor vehicle while under the influence of alcohol that is committed in his presence or view and "is still continuing at the time of the arrest or only interrupted, so that the offence and the arrest form parts of one transaction." Howe, supra at 334. The defendant argues that because the deputy sheriff did not observe the defendant operate the vehicle, he was not authorized to stop him. We are not persuaded. The deputy sheriff observed the intoxicated defendant next to the car, which was pulled over by the side of the road. As indicated by the hazard lights and the car's location by the side of the road, the car appeared to be paused only temporarily while en route. Thus, although the deputy sheriff did not observe the defendant driving, it was enough that he observed that the defendant had only paused his car while on his route. See Commonwealth v. Uski, 263 Mass. 22, 24 (1928) (definition of operation). "It has long been recognized that 'a vehicle may be operated when standing still.' " Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. 566, 568 (1926).

For similar reasons, the stop was justified by reasonable suspicion "based on specific, articulable facts and reasonable inferences therefrom, that an occupant of the [car] had committed, was committing, or was about to commit a crime." Commonwealth v. Alvarado, 423 Mass. 266, 268 (1996). Based on his observations, the fact of the defendant's intoxication was a matter within the deputy sheriff's realm of common knowledge requiring no particular specialized knowledge. See Commonwealth v. Wall, 469 Mass. 652, 671 (2014), quoting from Commonwealth v. Taylor, 263 Mass. 356, 362 (1928) ("The 'effects of liquor upon the mind and actions of men are well known to everybody' "). Moreover, the defendant's operation of the vehicle was a matter readily inferred from the circumstances.

Judgment affirmed.