text:
    COMMONWEALTH v. Owen NOEL.
    17-P-763
    Appeals Court of Massachusetts.
    Entered: May 11, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      We note that on one of the four complaints the defendant's name appears as "Owen C. Noel, II."

   The defendant appeals from his convictions, after a jury trial, of seven counts of assault and battery, G. L. c. 265, § 13A, and three counts of indecent assault and battery on a child under age fourteen, G. L. c. 265, § 13B, involving a total of four separate victims. We affirm.

Background. In 2015, the defendant was charged with thirteen counts of indecent assault and battery on a child under age fourteen, and one count of indecent assault and battery, for tickling, hugging, licking, or touching the breasts or buttocks of four young girls: A.F., A.S., S.F., and L.S. The cases were joined for trial. On the morning of trial, without objection, the judge allowed the Commonwealth's motions to amend the complaints, converting seven of the counts of indecent assault and battery on a child under age fourteen to simple assault and battery. At the close of the Commonwealth's case, the defendant's motion for required findings of not guilty was denied. The theme of the defense was that the allegations were fabricated. The jury returned verdicts of guilty on ten counts, detailed infra to the extent necessary, and not guilty on four counts.

1. Sufficiency of the evidence. The defendant challenges the sufficiency of the evidence as to three of his convictions. We reject each challenge.

First, as to his conviction of assault and battery for tickling S.F., the defendant argues that there was insufficient evidence that the touching was nonconsensual because S.F. testified that the tickling was "just horse play" that "made [her] feel fine." This testimony, however, concerned only one incident. S.F. testified that the defendant tickled her "[l]ike every time" she went over to his residence, that she "just got used to it ... it was just reoccurring," but that it made her feel "uncomfortable." This permitted the jury to find that she did not consent. "Although manifest objections by the victim would have made this a simpler case, we do not require an explicit verbal or physical rebuff to prove lack of consent. Instead, we analyze lack of consent based on the totality of the circumstances." Commonwealth v. Shore, 65 Mass. App. Ct. 430, 433 (2006).

Second, as to his conviction of assault and battery for hugging A.F. while tickling her side and waist, the defendant argues, correctly, that there was no evidence of such tickling. Although the verdict slip stated, "Assault and Battery on [A.F.] by reason of a hug with side/waist tickling," the defendant did not object to the verdict slip, and thus we review for whether the absence of evidence of such tickling, coupled with the language of the verdict slip, created a substantial risk of a miscarriage of justice.

"When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense." Commonwealth v. Arias, 78 Mass. App. Ct. 429, 434 (2010). "To prove a violation of G. L. c. 265, § 13A, when the battery at issue is offensive (as opposed to harmful), ... the Commonwealth must prove beyond a reasonable doubt that the defendant, without justification or excuse, intentionally touched the victim, and that the touching, however slight, occurred without the victim's consent." Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 476 (2008). Neither tickling nor any other particular form of touching is an element of the offense, and neither the complaint nor the judge's instructions mentioned tickling. The defendant concedes that there was sufficient evidence that he hugged A.F., and does not question that hugging satisfies the touching element of the offense. Moreover, the defendant cites no case in which the inclusion in a verdict slip of a factual proposition that was neither charged nor proven at trial is enough to invalidate the verdict. In these circumstances, any error did not create a substantial risk of a miscarriage of justice.

Third, as to his conviction of indecent assault and battery on a child under age fourteen for touching the breast of L.S., the defendant argues that there was insufficient evidence that he touched her actual breast. L.S. testified that the defendant touched her "[n]ear [her] boobs, ... under [her] wire, like wire bra," in her "breast area." This was sufficient. L.S. was thirteen years old at the time of trial, and even younger when the assault occurred. The law does not require a child victim to describe an assault with clinical precision. "We do not require victims to describe with scientific accuracy parts of their anatomy or for children to possess vocabulary and habits of precision that many adults do not command." Commonwealth v. King, 445 Mass. 217, 224 (2005), cert. denied, 546 U.S. 1216 (2006), quoting from Commonwealth v. Moniz, 43 Mass. App. Ct. 913, 914 (1997).

2. Improper appeal to jury's sympathy. The defendant argues that the testimony regarding A.F.'s contemplation of suicide, and the prosecutor's references to that testimony in her opening statement and closing argument, were improper appeals to juror sympathy. Because the defendant did not object at trial, we review any error for a substantial risk of a miscarriage of justice. We see none.

A.F. and her first complaint witness, S.R., each testified that A.F.'s suicidal thoughts prompted her to disclose the assaults to S.R. "A [victim], as well as the first complaint witness, may testify as to the details of the complaint itself and why the complaint was made at that particular time." Commonwealth v. McCoy, 456 Mass. 838, 845 (2010). None of this testimony was inadmissible.

As to the prosecutor's statements regarding this testimony, "[t]he prosecutor properly could have referred in [her] opening to anything that [she] expected to be able to prove by evidence." Commonwealth v. Fazio, 375 Mass. 451, 456 (1978). In a closing argument, "the prosecutor may make a fair response to an attack on the credibility of a government witness." Commonwealth v. Senior, 454 Mass. 12, 17 (2009), quoting from Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). The prosecutor's statements here regarding A.F.'s and S.R.'s testimony stayed well within these bounds and contained no improper emotional appeals. There was no error and thus no substantial risk of a miscarriage of justice.

3. Bad acts evidence. The defendant argues that the judge abused his discretion in admitting several types of what the defendant characterizes as bad acts evidence. Again, because the defendant failed to object at trial, we review any error for a substantial risk of a miscarriage of justice.

a. Statements by defendant. The defendant first challenges three victims' testimony regarding (1) statements he made to them about their weight, buttocks, or breasts, and (2) how those statements made them feel. The statements about the victims' bodies were admissible for the nonpropensity purposes of proving both the defendant's motive-sexual interest-and his pattern of operation: physical abuse coupled with emotional manipulation. See Commonwealth v. Crayton, 470 Mass. 228, 249 (2014) ; Commonwealth v. Morris, 82 Mass. App. Ct. 427, 441 (2012). Assuming without deciding that these statements-particularly the statement made to A.S. at the same time as the defendant assaulted her-constituted bad acts at all, the testimony about them was brief, and their probative value was not outweighed by any risk of unfair prejudice. See Crayton, 470 Mass. at 249 & n.27.

Similarly, the victims' brief testimony about how the defendant's comments made them feel was probative both of their lack of consent and of why they delayed reporting the defendant's abuse. The probative value of this testimony, even if it could somehow be viewed as bad acts evidence, was not outweighed by any risk of unfair prejudice. There was no error and therefore no substantial risk of a miscarriage of justice.

b. Other acts of defendant. The defendant next challenges the admission of testimony that he asked L.S. for a kiss and that he tickled and licked his own daughter. L.S.'s testimony that the defendant had once "asked for a kiss, and [she] said no" was probative of the defendant's motive and L.S.'s lack of consent. That admitting this testimony might have been inconsistent with the judge's reasoning in a previous ruling on a separate bad acts issue did not make the admission an abuse of discretion. In any event, even if we were persuaded that the unfair prejudicial effect of this single brief statement outweighed its probative value, we could not say that the error created a substantial risk of a miscarriage of justice.

S.F.'s testimony about an occasion on which the defendant tickled her and the defendant's daughter-which S.F. herself described as "just horse play" that made her "feel fine"-caused no unfair prejudice to the defendant. We see no need to discuss it further.

A.F.'s testimony that when the defendant licked her face, he also licked his daughter's face, must be considered in light of the daughter's role in the case: she was a witness for the defense who testified that she had never observed any of the conduct alleged by the victims. She specifically denied seeing her father lick A.F.'s face and denied that he had ever licked her own face. A.F.'s testimony to the contrary was admissible for the nonpropensity purposes of challenging the daughter's credibility, motive for testifying, and potential bias. "Because bias, prejudice, and motive to lie are not considered collateral matters, they may be demonstrated by extrinsic proof ...." Commonwealth v. Hall, 50 Mass. App. Ct. 208, 213 n.7 (2000), quoting from Liacos, Massachusetts Evidence § 6.9, at 299-300 (7th ed. 1999). The testimony's probative value was not outweighed by any unfair prejudice to the defendant, and certainly was not outweighed to the extent that the error created a substantial risk of a miscarriage of justice.

c. Defendant's control of his family. Finally, the defendant challenges A.F.'s testimony that he would "rule" his family, that "[e]verything had to go his way" in his home, and that he would not allow his daughter to sleep over at A.F.'s house, whereas A.F. slept at his house "[l]ike every weekend." This testimony was admissible for the nonpropensity purposes of showing the daughter's possible motive or bias in testifying as a defense witness, as well as showing the defendant's preparation or plan for maximizing access to A.F. as a victim. See Crayton, 470 Mass. at 249. The probative value of this evidence outweighed any possible unfair prejudice to the defendant.

4. Claim of nonunanimous verdict. On the charge of indecent assault and battery on a person who had attained age fourteen, with A.S. alleged to be the victim, the jury returned a verdict of guilty of the lesser included offense of simple assault and battery. The defendant claims that because A.S. testified to at least two discrete incidents after she had turned fourteen where the defendant grabbed her buttocks, and where the verdict slip mentioned the touching of buttocks but did not distinguish between those two incidents, the jury may not have been unanimous. Although the judge gave the jury a specific unanimity instruction, to which the defendant did not object, the defendant now argues that the instruction was "not sufficiently forceful" and that the error created a substantial risk of a miscarriage of justice. Commonwealth v. Ramos, 47 Mass. App. Ct. 792, 798 (1999), citing Commonwealth v. Conefrey, 420 Mass. 508, 516 n.11 (1995). We do not agree.

"The Conefrey case ... stands for the proposition that, when the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged." Ramos, 47 Mass. App. Ct. at 798, quoting from Commonwealth v. Kirkpatrick, 423 Mass. 436, 442, cert. denied, 519 U.S. 1015 (1996). Here, the judge instructed the jury that they could "find the defendant guilty only if you unanimously agree that the Commonwealth has proved beyond a reasonable doubt that the defendant committed the offense on at least one of the alleged occasions." This instruction conveyed the concept of specific unanimity more clearly than the instruction in Ramos. But even if we were to "assume for purposes of decision that this instruction was not sufficiently forceful to satisfy Conefrey," Ramos, supra, we would see no substantial risk of a miscarriage of justice. As in Ramos, "[b]ased upon the victim's testimony concerning [two] particular and discrete instances of abuse, ... and the defendant's theory of defense (the victim's allegations were false), we conclude that any error in the trial judge's instructions concerning the need for specific unanimity was not 'sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error.' " Id. at 798-799, quoting from Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

5. Amendment of complaints. The defendant argues for the first time on appeal that the judge erred in permitting the Commonwealth, on the day of the trial, to amend the complaints to convert seven of the charges of indecent assault and battery on a child under age fourteen to simple assault and battery. A judge may allow a complaint to be amended if the amendment (1) would not prejudice either party and (2) is "a matter of form, not substance, meaning that a conviction on the original [complaint] would have barred a subsequent prosecution of the defendant on the amended [complaint]." Commonwealth v. Bougas, 59 Mass. App. Ct. 368, 370 (2003). The Commonwealth concedes that the amendments here were ones of substance but asserts that the defendant was not prejudiced to the extent necessary to create a substantial risk of a miscarriage of justice. We agree.

Trial counsel affirmatively stated his lack of objection to the amendments; on appeal, the defendant acknowledges that they resulted in his being charged with "less serious offense[s]." "It can be readily inferred from the record before us that the lack of objection by defense counsel was based upon a deliberate decision rather than an oversight." Commonwealth v. Bynoe, 49 Mass. App. Ct. 687, 694 (2000). The defendant benefited from the amendments in three ways.

First, by avoiding convictions of indecent assault and battery on a child under age fourteen, he no longer risked being subject to sex offender registration pursuant to G. L. c. 6, §§ 178C - 178Q. Second, although both offenses have the same maximum sentence in the District Court, an assault and battery conviction may result in a fine rather than a house of correction sentence. G. L. c. 265, §§ 13A, 13B. Third, to obtain a conviction of assault and battery here, where the battery was not physically harmful, the Commonwealth had to prove an additional element: lack of consent. See Commonwealth v. Burke, 390 Mass. 480, 483-484 (1983).

The defendant nevertheless claims prejudice inasmuch as the amendments relieved the Commonwealth of the need to prove the touchings were indecent. We are unpersuaded. Even after the amendments, there were still charges of indecent assault and battery on a child under age fourteen pending against the defendant as to each of the victims, yet the defendant did not argue at trial that any of the touchings were not indecent. Instead, his entire defense was that the victims had fabricated all of their allegations. Indeed, it would have been awkward to argue simultaneously both (1) that some of the alleged touchings never occurred and (2) that those that did occur were not indecent. And even if the defendant might have succeeded in obtaining required findings or jury verdicts of not guilty on this latter ground, the Commonwealth would have remained free to prosecute him for assault and battery for the same conduct, as assault and battery is not a lesser included offense of indecent assault and battery on a child under age fourteen. See note 14, supra. For all of these reasons, we conclude that the amendments created no substantial risk of a miscarriage of justice.

Judgments affirmed.

      The thirteen counts included three alleged offenses against each of the victims A.F., A.S., and S.F., respectively; and four against victim L.S. The single count of indecent assault and battery involved an alleged offense against A.S. after she had attained the age of fourteen.

      These included two counts each as to A.F., A.S., and S.F., and one count as to L.S.

      The judge properly instructed the jury on the purpose and use of first complaint evidence before each witness testified, and again at the close of evidence. See King, 445 Mass. at 248.

      "[T]he first complaint rule is ... applicable whenever the credibility of an allegation of a sexual assault allegation is at issue." Commonwealth v. Mayotte, 475 Mass. 254, 258 (2016). Here, a theme of the defendant's defense was that the victims were all "telling a story," which they left intentionally vague so as to preclude contradiction.

      Defense counsel's lack of objection is a further indication that the prosecutor's comments were not unfairly prejudicial. See Commonwealth v. Toro, 395 Mass. 354, 360 (1985). Similarly, the jury's acquittal of the defendant on one of the three charges involving A.F. suggests that they were not emotionally swayed by testimony or argument regarding her contemplated suicide. See Commonwealth v. Rock, 429 Mass. 609, 616 (1999) ; Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 14 (2010).

      A.S. testified that the defendant told her that she "needed to lose weight because [her] boobs were getting big" and then hugged her and slapped her buttocks. A.F. testified that the defendant told her, "When you run, you're going to knock yourself out with your boobs." L.S. testified that he told her that her "butt is getting bigger so [she] need[s] to lose weight and [her] belly was getting bigger."

      A.S. testified that the comments made her feel like she "needed to lose weight because [her] boobs were getting big." A.F. testified that she wore sweaters around the defendant, in part because of his comments to her. L.S. testified that his comments made her feel like she was "fat" and "a bad person."

      Cf. Commonwealth v. Bradshaw, 86 Mass. App. Ct. 74, 76 n.5, 77 n.6 (2014) (defendant's statement that he was attracted to young boys did not pertain to acts, but to nature of defendant's sexual attraction).

      As for the defendant's claim that the prosecutor should not have referenced this testimony in her closing argument, "The Commonwealth may refer in its closing to bad act evidence that was properly admitted." Morris, 82 Mass. App. Ct. at 442. The argument was a permissible response to defense counsel's closing argument, which questioned why the victims had not promptly reported the alleged abuse to their parents.

      The same is true of A.F.'s testimony that the defendant said to her, "You would like to have a threesome with my two boys," which made her feel "really weird." The testimony was admissible for the nonpropensity purposes of proving the defendant's sexual motivation, his course of conduct of manipulating A.F., and A.F.'s lack of consent.

      In denying the Commonwealth's motion in limine to allow the defendant's neighbor to testify that she had witnessed the defendant slap girls' buttocks, the judge reasoned that the Commonwealth already had sufficient modus operandi evidence by joinder of the cases of the four victims. The judge's ruling that the neighbor could not so testify did not bar any testimony by the victims themselves. See Commonwealth v. Grady, 474 Mass. 715, 720 (2016).

      The defendant also suggests that it was error for the verdict slip itself not to distinguish between the two incidents, but we do not regard the authority he relies upon, Commonwealth v. LaCaprucia, 429 Mass. 440, 453 (1999), as establishing such a requirement.

      A conviction of indecent assault and battery on a child under age fourteen would not bar a subsequent prosecution for assault and battery, which has the additional element of lack of consent. See Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 694 (2009).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Albert TOLIAFERRO.
    15-P-127
    Appeals Court of Massachusetts.
    Entered: May 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In 2014, after a jury trial, the defendant was convicted of larceny from a person. In 2015, the defendant's motion for new trial was denied without a hearing. The defendant appeals from his conviction and the denial of his new trial motion. We affirm.

1. The identification procedures. The defendant claims the Commonwealth withheld two facts about the identification procedures: (1) that the police showed the victim his keys before the showup; and (2) that the victim made a tentative identification at the end of the showup. We disagree with both claims as the defendant has failed to offer any evidence in support of the allegations.

It is the defendant's burden to prove that the Commonwealth withheld evidence it was required to disclose. Commonwealth v. Caillot, 454 Mass. 245, 261-262 (2009). As the Commonwealth has argued, the defendant has not provided any affidavits, documents, or other competent evidence of what materials were or were not disclosed to him. Thus, he has not met his burden of proof.

2. Assistance of counsel. The defendant claims that counsel was ineffective for failing to correct the erroneous implication that the defendant had a criminal record. We disagree. First, the photograph at issue did not suggest that the defendant had a criminal record like the booking photograph did in Commonwealth v. Gerald, 356 Mass. 386, 388 (1969), the case upon which the defendant relies. The detective testified that, if the police enter a known suspect's name, "the system generates a series of photographs." There was no dispute that the defendant was already a suspect in this case, and the detective never suggested that a prior arrest was a prerequisite for having a photograph in the system.

Second, even if the testimony did leave the suggested impression, defense counsel did not possess fertile ground for impeachment of the detective's testimony because evidence that the defendant had no prior criminal record would have been irrelevant to any issue in this case, and thus inadmissible. The defendant has cited no authority, and we are aware of none, that would permit a defendant, during trial, to introduce evidence that he does not have a prior criminal record.

Third, defense counsel reasonably chose to address the photograph by asking the judge to give the jury a limiting instruction regarding it, which the judge did both during the relevant testimony, and in the final jury charge. These instructions informed the jurors that the police obtain photographs from many sources for many reasons, and that the jurors were not to infer from the fact that the police had a photograph of the defendant that he had committed any crime. The strategic choice made by defense counsel was by no means manifestly unreasonable, and not below what is expected of an ordinary fallible lawyer. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant also claims that counsel was ineffective because he did not file a motion to suppress the pretrial identifications and the defendant's statements in a case where the defense was mistaken identification. We disagree.

There was a reasonable tactical justification for not moving to suppress the showup identification. As stated above, counsel's strategy was to show that the defendant had been misidentified. In support of that, counsel used the victim's reported statement at the showup that he did not think the defendant was the robber. Therefore, counsel reasonably could have concluded that moving to suppress the showup would be counterproductive. See Commonwealth v. Duran, 435 Mass. 97, 104 (2001).

The defendant also claims counsel should have moved to suppress the victim's recognition of the defendant's photograph on his identification card, and the victim's later selection of the defendant's photograph from an array because they were tainted by the original showup. Because we have concluded that the showup was not tainted, this claim must fail. In this light, those later identifications need not have been premised on an independent source. See Commonwealth v. Watson, 455 Mass. 246, 254-255 (2009).

Finally, the defendant claims that counsel was ineffective for not moving to suppress the defendant's statements to the police. More specifically, the defendant claims that he was subjected to custodial interrogation-without the benefit of Miranda warnings-in an interior stairwell of 70 Tennis Road. We disagree.

First, putting aside the defendant's exaggeration of how many officers met him in the stairwell, the defendant was not handcuffed at the time of questioning. The questioning took place in a residential building, not a police station. The officers never mentioned the robbery or implied that he was a suspect, and there was no evidence that the officers were hostile or aggressive. Given these circumstances, the factual predicate for a finding of custody was absent, and questioning the defendant without Miranda was permissible. See Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). A motion to suppress on these grounds would have failed and, thus, counsel was not ineffective for not filing one. See Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527 (1996) (failure to pursue futile motion not ineffective assistance).

Judgment affirmed.

Order denying motion for new trial affirmed.

      The defendant had been indicted for armed robbery, but at the Commonwealth's request, that charge was reduced so the case could be tried in the municipal court.

      In any event, the defendant's record appendix, which contains a police report regarding the purportedly withheld evidence, undermines his claim that the Commonwealth failed to disclose that the police showed the victim his keys before the showup. There is no evidence that this report was withheld. Also, the defendant has made no showing that the Commonwealth was aware prior to trial that the victim would testify to making a tentative identification of the defendant at the showup. This is supported by the prosecutor's opening statement, which told the jury that the victim did not identify the defendant at the showup.

      We add that the defendant has failed to establish that a motion to suppress the showup would have succeeded. See Commonwealth v. Ly, 454 Mass. 223, 228 (2009). Here, where the victim had been robbed at gunpoint, his assailant had fled with the gun, and the police had not yet found the gun, the prompt showup was justified by a concern for public safety. See Commonwealth v. Austin, 421 Mass. 357, 361-362 (1995). Also, contrary to the defendant's claim, the mere fact that the defendant was handcuffed in the company of two police officers, did not make the showup unnecessarily suggestive. See Commonwealth v. Meas, 467 Mass. 434, 442, cert. denied, 135 S. Ct. 150 (2014). Nor did showing the victim his car keys render the showup unnecessarily suggestive where the officers did not tell the victim where they found his keys. Finally, prior to the showup, a police sergeant cautioned the victim in part in accordance with Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009).

      Because there was no error in the denial of the motion for new trial, there is no need to address the defendant's cumulative error claim. Similarly, as the defendant's motion failed to raise a substantial issue, the motion judge did not abuse her discretion by denying it without a hearing. See Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981).


text:
    John DOE, Sex Offender Registry Board No. 128521 v. SEX OFFENDER REGISTRY BOARD.
    17-P-166
    Appeals Court of Massachusetts.
    Entered: May 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In July of 2016, the plaintiff (Doe) filed a verified complaint in the Superior Court for judicial review pursuant to G. L. c. 30A, declaratory judgment, and certiorari relief pursuant to G. L. c. 249, § 4. The defendant, the Sex Offender Registry Board (SORB), filed a motion to dismiss, which was allowed. Doe appeals, claiming that (1) the motion judge erred in ruling that the Superior Court did not have subject matter jurisdiction over Doe's motion before SORB to vacate his level three sex offender classification; (2) his due process rights were violated when SORB failed to provide notice of its intent to increase his sex offender classification from level two to level three; and (3) the increase in his classification was based on materially inaccurate information. We reverse and remand.

Background. In 2005, Doe pleaded guilty to rape of a child. In September, 2008, SORB notified Doe that it intended to recommend a level two classification. Doe did not object and the classification became final in October of 2008. In January of 2014, SORB sent a notice to Doe informing him that it intended to increase his classification to level three. Doe contends that because he did not receive this notice, he did not file an objection. As a result, the recommended classification became final in March of 2014.

In May of 2016, Doe filed with SORB a motion to vacate the level three classification and alternatively to reinstate his hearing rights. The motion was summarily denied on June 20, 2016. Thereafter, Doe filed the complaint that is the subject of this appeal.

A judge of the Superior Court, in allowing SORB's motion to dismiss, ruled that the court lacked subject matter jurisdiction to review the denial of Doe's motion to vacate because it did not result from an adjudicatory hearing. The judge also ruled that to the extent Doe did not receive SORB's notification of its intent to increase his classification level, any due process violation was waived by Doe's two-year delay in moving to vacate the increased classification. The judge did not address Doe's certiorari claim.

Subject matter jurisdiction. General Laws c. 30A, § 14, provides for judicial review of a final decision of an agency in an adjudicatory proceeding. School Comm. of Hudson v. Board of Educ., 448 Mass. 565, 577 (2007). However, if the agency decision is not made in an adjudicatory proceeding, a court lacks jurisdiction to review the decision under G. L. c. 30A. Ibid. Here, we agree with Doe that the denial of his motion to vacate the level three certification did arise from an adjudicatory proceeding and, thus, the Superior Court judge erred in dismissing his complaint for lack of subject matter jurisdiction. See Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 394-395 (2013) (Soe ); Doe, Sex Offender Registry Bd. No. 209081 v. Sex Offender Registry Bd., 478 Mass. 454, 457 (2017) (Doe No. 209081 ). Moreover, SORB's exercise of its inherent authority to reopen a classification proceeding is reviewable for an abuse of discretion. Soe, supra at 395-396. Doe No. 209081, supra.

In the circumstances, Doe's motion is so interconnected with the underlying reclassification that the proceeding is indeed adjudicatory. Compare id. at 456-457 (review was available under c. 30A where plaintiff's petition to reopen classification claimed defect in waiver of counsel at hearing). SORB's summary denial of Doe's motion in this case makes difficult an evaluation of whether and how SORB exercised its discretion and, as a result, the judge was likewise unable to consider whether SORB abused its discretion. The administrative record is particularly silent as to whether SORB considered Doe's explanation for the delay in bringing the motion and as to how it weighed any prejudice suffered by Doe as a result of the absence of a reclassification hearing. See Doe No. 209081, supra at 458-459.

Conclusion. The judgment is reversed and the matter is remanded to the Superior Court. The judge may, in his discretion, remand the matter to SORB for elucidation of its decision on Doe's motion to vacate.

So ordered.

Reversed and remanded.

      SORB sought to reclassify Doe because of "ongoing substance abuse and violent offending (most especially toward women)."

      General Laws c. 30A, § 1, defines an adjudicatory proceeding as one "before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing."

      As a result of our decision, we need not address Doe's other claims.


text:
    COMMONWEALTH v. Emmanuel HERNANDEZ.
    17-P-93
    Appeals Court of Massachusetts.
    Entered: May 10, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in Superior Court, the defendant was convicted of trafficking in cocaine weighing over 200 grams. On appeal, he claims error in the denial of: his pretrial motion to suppress certain evidence, his motions for a required finding of not guilty, and his request for a mistrial. The defendant also argues that the Commonwealth's closing argument was flawed in certain respects. Discerning no abuse of discretion or other reversible error of law, we affirm the conviction.

Background. There was little variance between the evidence admitted at the evidentiary hearing on the motion to suppress and that admitted at trial. We summarize that evidence based on the findings made by the motion judge, while noting additional evidence that emerged only at trial. Certain details are reserved for later discussion.

On December 6, 2012, a Federal postal inspector applied for a warrant to search a parcel mailed from Puerto Rico to the defendant's residence in New Bedford. In his affidavit in support of the application for the search warrant, the inspector averred that there was probable cause to believe that the parcel contained controlled substances. After a Federal magistrate judge issued the warrant, the inspector opened the parcel to reveal what appeared to be five kilograms of cocaine. At that time, the inspector contacted a State trooper, and they put in motion a controlled delivery of the parcel to the defendant on December 7, 2012.

In anticipation of the delivery, the trooper obtained two search warrants. The first allowed him to install a beeper in the parcel so that police could track its location and know whether it had been opened. The second warrant was an anticipatory one, that is, one that "[took] effect at a specified future time and not on its issuance." Commonwealth v. Staines, 441 Mass. 521, 525 (2004). The anticipatory warrant authorized entry into the defendant's premises without announcement to search for "[a]ll controlled substances ..., specifically marijuana." It took effect upon the following occurrences: the acceptance of the parcel, the defendant's signature on the delivery receipt, and the taking of the parcel into his residence.

After the two warrants were obtained and the beeper was installed inside the parcel, the Federal inspector made the controlled delivery, with the State police surveilling the defendant's residence. The inspector drove to the defendant's residence, saw the defendant across the street from his residence, and initiated a conversation with him. During that conversation, the defendant identified himself, informed the inspector that the parcel was for him, and signed for it. The defendant then carried the parcel into his apartment building.

Approximately twenty minutes after the delivery, the defendant exited his apartment and walked toward his vehicle. At that point, the beeper inside the package had not signaled that the package had been opened. Nevertheless, fearful that the defendant could be hiding cocaine inside the "puffy jacket" he was wearing, the police decided "to move in." While one set of troopers detained the defendant and searched him, another entered his apartment and froze the scene there. Based on the anticipatory search warrant, the police retrieved the package containing the cocaine from the closet of a bedroom used by the defendant. After the scene was frozen, the trooper obtained yet another warrant to search the defendant's apartment for "[a]ll controlled substances ..., specifically Marijuana," and items related to the manufacturing and distribution of narcotics. Pursuant to that warrant, the following additional items were found inside the apartment: a digital scale, approximately $29,000 in cash, ammunition, and a clear plastic baggie containing a white powdery substance. The police arrested the defendant and the three individuals found in his apartment.

Discussion. Motion to suppress. The defendant argues that the motion judge erred in denying the motion to suppress, because the police entered the apartment and retrieved the package containing the cocaine without waiting for the conditions precedent included in the anticipatory search warrant to be satisfied. In addition, the defendant argues that the anticipatory warrant and the additional search warrant violated the particularity requirement, because on their face they authorized a search for marijuana, while police had no probable cause to believe that there was marijuana in the defendant's apartment.

"In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law.' " Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). In this case, the motion judge correctly concluded that the police did not violate the anticipatory warrant.

As noted, the anticipatory warrant listed only three conditions precedent, all of which unquestionably had been satisfied by the time the police entered the apartment: the acceptance of the parcel, the defendant's signature on the delivery receipt, and the taking of the parcel into the defendant's residence. Nor did the affidavit submitted in support of that warrant set forth any additional conditions precedent. With the only conditions precedent set forth in the application for the search warrant and the search warrant itself fully having been satisfied, there was no violation here.

Although "[t]he triggering event [in an anticipatory warrant] must be 'clearly and narrowly defined,' " Commonwealth v. Celestino, 47 Mass. App. Ct. 916, 917 (1999), quoting from Commonwealth v. Gauthier, 425 Mass. 37, 43 (1997), the defendant argues that an additional condition precedent can and should be inferred. That condition precedent is that the police could not execute the warrant until either thirty minutes had elapsed from the time the package entered the apartment, or the beeper had signaled that the package had been opened. As noted earlier, see note 1, supra, while this additional condition precedent is not mentioned in either the anticipatory warrant or in the application for it, it was mentioned in the application for the separate but related warrant for the placement of the beeper inside of the package. Moreover, as the Commonwealth acknowledges, the trooper who executed the anticipatory warrant himself viewed this additional condition precedent as applying to the execution of that warrant.

Notwithstanding the trooper's understanding, we have at least significant doubt about whether having to wait the full period (that is, until either thirty minutes had elapsed or the beeper had sounded), should properly be viewed as a condition precedent to the execution of the anticipatory search warrant. In other words, this is not a case where "the occurrence of the 'so-called triggering condition' specified in the affidavit [was] necessary to establish probable cause and therefore [was] a condition precedent to the execution of the warrant." Commonwealth v. Colondres, 471 Mass. 192, 197 (2015). There plainly was probable cause regardless of whether the police waited the additional time. In any event, we agree with the Commonwealth that even if the police having to wait the full period were seen as an additional condition precedent, the entry into the apartment and limited initial search would not thereby be rendered invalid. As noted, the police decided to "move in" only in reaction to the defendant's unexpectedly leaving the apartment in his "puffy jacket" before the full period had elapsed. In these circumstances, there was "equivalent compliance" between the triggering conditions and the events that transpired at the scene. Id. at 198 ("[T]he execution of a search is authorized by an anticipatory search warrant once there is equivalent compliance, albeit not strict compliance, with the triggering conditions in the affidavit").

The motion judge likewise correctly ruled that the anticipatory warrant and the search warrant did not violate the particularity requirement. Both warrants authorized searches for "all controlled substances ... in violation of [G. L. c. 94C]," which includes cocaine. The language "specifically marijuana," on which the defendant relies, does not render the general language of the warrant inoperable, because the general and specific language are not mutually exclusive. In addition, even if we were to conclude that the specific language of the warrants rendered the general language of the warrants inoperable, there still would be no violation of the defendant's rights. It is well established that a "[technical] defect in the warrant [that] did not lead to a general search of the premises ... [because] the police ... believed that their authority to search was limited in scope to those items set forth in the affidavit ... [and] in no way exploited, or attempted to exploit, the illegality of the warrant" does not violate the Constitutional and statutory restrictions. Commonwealth v. Sheppard, 394 Mass. 381, 390 (1985). Here, the police searched the defendant's apartment for the cocaine mentioned in the affidavit and "[t]he search was conducted in the same way and with the same results as it would have been conducted if the warrant had not been defective." Ibid. (quotation omitted). The motion judge's ruling that there was no violation of the particularity requirement is correct.

Mistrial. The inspector who made the controlled delivery of cocaine testified at trial. The defense counsel cross-examined him on, among other topics, the identity of the person who sent the package to the defendant. At one point, defense counsel asked the prosecutor at sidebar whether the Commonwealth had information about the identity of the sender of the package. The prosecutor responded that there were "suspicions as to who it [was,] but [they had] never been confirmed." Following that response, counsel asked the inspector whether "there was [any] connection made between [her client and] that individual [who shipped the parcel, which was found in her client's apartment, from Puerto Rico to her] client." The inspector responded, "I believe[ ] there was." Evidently surprised by the witness's response in light of the prosecutor's answer to her earlier question, counsel asked to be heard at sidebar. The trial judge allowed defense counsel to conduct a voir dire of the inspector. In that voir dire, the inspector clarified that, in his view, the sender of the package-whose image was captured in a video recording made at the post office in Puerto Rico-bore some resemblance to one of the other occupants of the defendant's apartment, and that therefore there was a "possib[ility]" that the two people were the same.

At the conclusion of the voir dire, the trial judge inquired of defense counsel how she wished to proceed. The trial judge specifically indicated her willingness to strike the inspector's earlier testimony that he believed there was a connection between the two people in lieu of counsel's having the inspector clarify his testimony during further cross-examination. Instead, counsel requested a mistrial based on the theory that the Commonwealth had committed a discovery violation. In fact, counsel even went so far as to argue that the trial judge should dismiss the case. The trial judge denied these oral requests but offered to give counsel the weekend to decide how she wanted to proceed. Counsel rejected that offer and renewed her cross-examination of the inspector, who clarified that he merely had a "suspicion" about the identity of the sender of the parcel.

"The denial of a motion for mistrial is reviewed for abuse of discretion." Commonwealth v. Santana, 477 Mass. 610, 625 (2017). The defendant cannot come close to demonstrating an abuse of discretion here.

As an initial matter, we note that the Commonwealth had provided the defendant a copy of the video recording of the sender of the package. In addition, the defendant was well aware of what the other occupants of his apartment looked like, and was provided with a booking photograph of the relevant person arrested there. Thus, defense counsel had the very same underlying data about the possible identity of the sender as the Commonwealth possessed. The only information the defendant was not provided was that the inspector saw a resemblance between the two people. The Commonwealth itself could not have admitted in evidence that the inspector saw that resemblance-see Commonwealth v. Austin, 421 Mass. 357, 366 (1995) -and the defendant has not demonstrated how the Commonwealth violated any discovery obligations in not disclosing the inspector's belief. This is not a case where there was a surprise midtrial disclosure of evidence. Contrast Commonwealth v. Ellison, 376 Mass. 1, 25 (1978) ("The prosecutor's late, piecemeal, and incomplete disclosures forced on defense counsel the necessity of making difficult tactical decisions quickly in the heat of trial").

Furthermore, the defendant has not established how he was prejudiced by the inspector's testimony. In fact, as the trial judge correctly observed, any suggestion from the inspector's testimony that the package was sent from one of the others found in his apartment actually might have strengthened his defense. Indeed, defense counsel argued in her opening statement that three people "purposeful[ly] ... arrive[d]" to the defendant's apartment "just in time for the package."

Finally, to the extent the inspector's testimony surprised the defense counsel, the trial judge offered several measures to address this, including striking that testimony, and letting counsel ponder the matter further over the weekend. Defense counsel instead chose to continue with her cross-examination (through which the inspector clarified the limited nature of his earlier statement). In these circumstances, the trial judge did not abuse her broad discretion in refusing to declare a mistrial. Commonwealth v. Thomas, 429 Mass. 146, 157 (1999). Ipso facto, the trial judge did not err in declining to dismiss the indictment. See Commonwealth v. Lam Hue To, 391 Mass. 301, 314 (1984) (dismissal of indictment is "a drastic remedy [that] would be appropriate where failure to comply with discovery procedures results in irremediable harm to a defendant that prevents the possibility of a fair trial").

Motions for required finding of not guilty. The defendant moved for a required finding of not guilty at the close of the Commonwealth's case and at the close of the evidence. On appeal, he argues that the denial of these motions was error because there was insufficient evidence that he knowingly and intentionally possessed the cocaine.

In a challenge to the sufficiency of the evidence, we examine whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979). Measured by that standard, the evidence here plainly was sufficient to support the conviction. Based on the evidence, and the reasonable inferences drawn therefrom, rational jurors could have concluded that the defendant accepted a package of cocaine, which was addressed to the defendant, took it into his apartment, and placed it into his bedroom closet. In addition, items associated with the drug trade (a digital scale, approximately $29,000 in cash, acetone used to purify cocaine, and a clear plastic baggie with white substance in it) were found in the defendant's apartment. Based on the evidence, the jury reasonably could conclude that the defendant knew that the parcel contained cocaine and that he intended to possess it. See Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410-411 (2013) (Kafker, J.) (proof of possession of narcotics can be established by circumstantial evidence), and cases cited.

Commonwealth's closing argument. The defendant argues that four statements that the prosecutor made in his closing argument were unsupported by the evidence. He principally challenges the statement that the defendant put the parcel containing the cocaine into his bedroom closet. That statement was a reasonable inference from the evidence, and therefore there was no error in the prosecutor's making it. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) ("We have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence"). Nevertheless, after the defendant lodged a contemporaneous objection to the statement, the trial judge instructed the jury to disregard it. In this manner, the trial judge gave the defendant more than he was entitled to.

The prosecutor also stated (or suggested) in his closing argument that the defendant lived on the third floor, that he was a "trusted employee," and that he did not telephone the police after receiving the parcel. Upon the defendant's objections, the trial judge forcefully instructed the jury to disregard these statements. "Because the claims of error were preserved, we review [the prosecutor's remarks] to determine whether [they] were improper and, if so, whether any improprieties were prejudicial." Commonwealth v. Tu Trinh, 458 Mass. 776, 785 (2011). In doing so, "[w]e analyze the defendant's claim [about impropriety of the closing argument] in light of the entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial." Ibid. (quotations omitted).

Any prejudice to the defendant from the prosecutor's overstatements was cured by the trial judge's instructions. See Commonwealth v. Donahue, 430 Mass. 710, 718 (2000) ("We presume that a jury understand and follow limiting instructions ..."). Moreover, the evidence against the defendant was strong. To the extent that the prosecutor may have overstated the evidence in part, this does not require reversal of his conviction.

Judgment affirmed.

      In his affidavit in support of the application for a warrant regarding the beeper, the trooper also referenced another triggering event. Specifically, the affidavit noted his intention to enter and search the defendant's residence only after either the beeper inside the parcel had signaled that the package had been opened, or thirty minutes had elapsed from the time of delivery.

      Although the application for the anticipatory warrant is dated as of December 7, 2012, the motion judge found that the trooper applied for it on December 6, 2012.

      In the apartment, the police found three other individuals.

      There was testimony at trial that the apartment was not searched until after the additional search warrant was obtained, thus suggesting that the package containing the cocaine was not actually retrieved until the additional search warrant was in hand. However, the motion judge found that the package was retrieved based on the anticipatory warrant, and we accept that premise in analyzing the denial of the motion to suppress. See Commonwealth v. Grandison, 433 Mass. 135, 137 (2001), quoting from Commonwealth v. Garcia, 34 Mass. App. Ct. 386, 391-392 (1993) ("[I]n reviewing a judge's ruling on a motion to suppress, an appellate court 'may not rely on the facts as developed at trial' even where the testimony differed materially from that given at trial").

      The trooper testified at the motion hearing that the reason he included the thirty-minute time period condition into his affidavit was that the Commonwealth "wanted to make sure that there was enough allotted time within the warrant itself in case somebody showed up that [the police would] be able to handle that situation."

      "In determining whether there has been equivalent compliance, we look to the inference that would have been drawn had the triggering conditions stated in the affidavit occurred ... and determine whether the weight of that inference is as strong or stronger under the actual conditions." Colondres, supra at 198.

      This exchange occurred on a Thursday morning. The trial was scheduled to continue on Monday and Tuesday of the next week.

      Notably, the defendant has vacillated between arguing that his case ultimately was helped or hurt by the possibility that the package was mailed by someone who was present in the apartment when it arrived.


text:
    Anetra WARREN v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
    17-P-669
    Appeals Court of Massachusetts.
    Entered: May 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Anetra Warren, appeals from a Superior Court judgment dismissing her complaint. Concluding that the plaintiff's complaint is sufficiently detailed to have survived a motion to dismiss brought by the defendant, the Massachusetts Bay Transportation Authority (MBTA), we reverse and remand.

"We review the allowance of [the] motion to dismiss de novo," accepting as true all allegations in the complaint and drawing all reasonable inferences in favor of the plaintiff. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). We also liberally construe the plaintiff's pro se, handwritten complaint. See Lamoureux v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 409, 410 n.4 (1983). The complaint need only contain "factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007).

According to the complaint, the plaintiff was riding an MBTA bus in South Boston with her two young daughters when the driver and other passengers got into a disagreement as to where the driver should stop. When the bus did stop, the plaintiff moved to exit the bus with her daughters, and the driver said, "[G]et the hell off [my] bus." The plaintiff told the driver not to address her in that manner, and threatened to call his supervisor. The driver shut the doors after the plaintiff's daughters exited, trapping the plaintiff inside, and drove off. While driving, the driver called the plaintiff a "black crackhead bitch" and "a prostitute." After about one block, the driver stopped the bus, but the plaintiff refused to leave until the police arrived.

These facts are sufficient to state a plausible claim under G. L. c. 272, § 98, as amended through St. 2016, c. 134, § 3, which states in relevant part: "Whoever makes any distinction, discrimination or restriction on account of race, color, religious creed, national origin, sex, gender identity, sexual orientation, ... deafness, blindness or any physical or mental disability or ancestry relative to the admission of any person to, or his treatment in any place of public accommodation, ... as defined in section ninety-two A, ... shall be liable to any person aggrieved thereby." An MBTA bus is a place of public accommodation under G. L. c. 272, § 92A, inserted by St. 1953, c. 437, because it is a "place ... [that] is open to and accepts or solicits the patronage of the general public." The driver's statement ("black crackhead bitch") supports the reasonable inference that he mistreated the plaintiff on account of her race or color and, thus, sufficiently supports the plaintiff's discrimination complaint.

Accordingly, the judgment is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.

So ordered.

reversed and remanded

      Judgment entered in the Superior Court on March 17, 2017. The plaintiff filed her notice of appeal on April 20, 2017, three days beyond the deadline imposed by Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). Although the notice of appeal was three days late, it appears that there may have been a delay in the plaintiff's becoming aware of the dismissal of the case; neither party has raised the issue. Accordingly, we exercise our discretion under Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979), and declare the plaintiff's notice of appeal timely. See Sniffin v. Prudential Ins. Co. of America, 395 Mass. 415, 420 n.10 (1985).


text:
    COMMONWEALTH v. Brandon C. PHILLIPS.
    17-P-1268
    Appeals Court of Massachusetts.
    Entered: May 16, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In this consolidated appeal, the Commonwealth contends that the District Court judge abused his discretion in dismissing the charges against the defendant, Brandon C. Phillips. The defendant appeals from an order of the single justice granting the Commonwealth's request for leave to file a late notice of appeal and from the denial of his motion for reconsideration. We affirm the orders of the single justice, and vacate the order of the District Court dismissing the charges.

Background. On January 23, 2017, a judge of the District Court dismissed, without prejudice, charges of use of a motor vehicle without authority, G. L. c. 90, § 24(2)(a ), and malicious damage to a motor vehicle, G. L. c. 266, § 28(a ). On January 27, 2017 the Commonwealth filed a motion to reconsider that was denied on February, 1, 2017. On March 10, 2017, the Commonwealth moved in the District Court for additional time to file a notice of appeal. When the District Court judge did not respond, the Commonwealth filed a motion to file a late notice of appeal pursuant to Mass.R.A.P. 14(b), as amended, 378 Mass. 939 (1979), with the single justice of this court on June 23, 2017. On June 30, 2017, the single justice allowed the Commonwealth's motion. The defendant moved for reconsideration on July 28, 2017; the motion was denied on July 31, 2017. The defendant filed his notice of appeal on August 24, 2017.

Late Notice of Appeal. The threshold question is whether the single justice abused her discretion in allowing the Commonwealth to file a late notice of appeal. A party "may file a motion with the appellate court or a single justice requesting an enlargement of the time for filing his notice of appeal." Commonwealth v. Barboza, 68 Mass. App. Ct. 180, 183 (2007). See Mass.R.A.P. 14(b). The "single justice ... is empowered to act at any time on a motion to enlarge the time to file a notice of appeal, so long as the appealing party has filed its notice of appeal within one year of the issuance of notice of the order it seeks to appeal." Commonwealth v. Jordan, 469 Mass. 134, 143 n.18 (2014). See Commonwealth v. White, 429 Mass. 258, 263-264 (1999). The Commonwealth filed its notice of appeal within one year of the dismissal of the charges, and shortly after confirming that its motion in the District Court would not be acted upon.

The defendant maintains that the Commonwealth nonetheless failed to show "good cause" to extend the time within which to appeal pursuant to Mass.R.A.P. 14(b), in the sense that the Commonwealth failed to present a question of law meriting judicial review. We agree that the motion in this case was regrettably short of a rationale for the request in this regard. However, in the context of similar motions filed by criminal defendants, we have noted the "importance of the rights lost to the defendant" in assessing "good cause." White, supra at 264. Although the Commonwealth does not share the same constitutional protections as a criminal defendant, the interests of the Commonwealth are not insubstantial. The single justice did not abuse her discretion in allowing the motion.

Dismissal of charges. The Commonwealth contends that the motion judge abused his discretion in dismissing the case without prejudice. The defendant maintains that the charges were properly dismissed as the case was more than two years old and there had been multiple attempts to schedule a trial date.

"Where a judge dismisses a criminal complaint without prejudice, the judge's decision should be upheld absent an abuse of discretion." Commonwealth v. Butler, 87 Mass. App. Ct. 183, 187 (2015), quoting from Commonwealth v. Gardener, 467 Mass. 363, 368-369 (2014). An abuse of discretion is determined by analyzing whether the judge made a "clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." Butler, supra, quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

A dismissal without prejudice may be affirmed where the prosecutor is unprepared, is tardy, or otherwise causes undue delay in the proceedings. See Commonwealth v. Anderson, 402 Mass. 576, 577 (1988) ; Commonwealth v. Joseph, 27 Mass. App. Ct. 516, 518-519 (1989). Where delay is not attributable to the Commonwealth, a dismissal without prejudice may be an abuse of discretion. See Commonwealth v. Jackson, 27 Mass. App. Ct. 521, 522 (1989) ; Butler, supra at 188-189.

The Commonwealth did not engage in conduct that caused unnecessary delay in this case. Of the first six continuances, one was ordered when an older case took precedence on the trial calendar, two were attributable to lack of an available judge, and one date was administratively rescheduled. The Commonwealth had appeared on each occasion ready to proceed to trial. Contrast Anderson, supra. One continuance was requested by defense counsel because of a medical emergency (which the Commonwealth states was a default, because the defendant did not appear). Only one continuance was requested by the Commonwealth due to the unavailability of the testifying officer. The defendant did not object.

On the most recent date scheduled for the trial, the complaining witness was unavailable due to a sudden case of the flu that morning. She had rescheduled a vacation to be available on that date, and had been available on the previous six scheduled trial dates. The Commonwealth reported that it was ready for trial at a conference four days before the scheduled trial date. We "appreciat[e] the concern of the busy judge to move his [or her] docket." Butler, supra at 189. However, where the Commonwealth had been ready for trial and diligent in the prosecution of the case, the decision to dismiss the charges without prejudice fell outside the range of reasonable alternatives. Ibid.

The orders of the single justice granting the Commonwealth's motion to file a late notice of appeal and denying the defendant's motion for reconsideration are affirmed. The District Court order of dismissal is vacated.

So ordered.

affirmed in part; vacated in part.

      The panelists are listed in order of seniority.

      A related issue exists with respect to the defendant's appeal. After the appeal was docketed, an order entered stating that his appeal was solely from the denial of the motion to reconsider, and was untimely as to the underlying order. The defendant did not file a motion for extension of time to file a notice of appeal late pursuant to rule 14(b). Whether we treat the appeal as one from the initial single justice order or the denial of the motion for reconsideration, or both, our disposition would be the same. Accordingly, we do not resolve the procedural question.


text:
    ADOPTION OF ZAREK.
    17-P-1486
    Appeals Court of Massachusetts.
    Entered: May 16, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The father appeals from a decree issued by a judge of the Juvenile Court terminating his parental rights to his son, Zarek, and approving the plan for adoption. On appeal, the father asserts that the judge's findings of unfitness were not supported by clear and convincing evidence. We affirm.

Discussion. A trial judge's findings of fact are entitled to considerable deference. We "reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011). Subsidiary findings of fact must be proved by a fair preponderance of the evidence and taken together, these findings must prove by clear and convincing evidence that the parent is unfit. See Adoption of Kimberly, 414 Mass. 526, 528-529 (1993) ; Adoption of Helen, 429 Mass. 856, 859 (1999). "A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Adoption of Cecily, 83 Mass. App. Ct. 719, 726 (2013) (quotation omitted).

Of the judge's 160 factual findings, the father challenges three sets of findings concerning the father's hygiene, mental and substance use issues, and judgment regarding supervision of the child. The father properly does not (and could not, given the nature of the evidence in this case) challenge the adequacy of the remaining factual findings. These include the unstable and transitory nature of the father's relationships, his decision to leave the State and the resulting decision not to maintain contact with the child for nearly a year, his statements to Department of Children and Families (department) social workers indicating a lack of interest in parenting Zarek, his inability to assess or respond to Zarek's needs during visits, his inability to obtain or maintain stable housing, and the lack of compliance with department service plans. These unchallenged findings are themselves sufficient to support the judge's ultimate findings and conclusions regarding parental unfitness, without regard to the challenged findings. We address the challenged findings because the father has asked us to consider them, and to explain the bases of our decision.

1. Hygiene. The father claims error in the judge's findings regarding his body odor and lack of personal hygiene, contending that the judge engaged in improper speculation concerning the cause of the condition. The department social workers observed that the father had a strong body odor and disheveled and unlaundered appearance. The judge also noted the father's odor and appearance during the trial. On appeal, the father contends that he has been unfairly penalized for an unknown medical condition. The father did not produce any evidence of doctor visits that would corroborate his assertion that the odor was attributable to some kind of medical condition; he did not take advantage of the department's efforts to help him obtain health insurance. In addition to the deficits in the father's body hygiene, the father's teeth were green and rotting. Although the father testified that his dental infection began at the age of eleven, he declined treatment for it as an adult. As a result, the father stopped brushing his teeth due to the pain of the infection, which worsened the condition. The trial judge was permitted to consider evidence of the father's ability to care for his own basic medical needs, and to draw appropriate inferences as to the father's ability to care for the child's basic physical needs.

2. Mental health. The father's service plan required him to complete mental health and substance use evaluations. The department social worker believed such an evaluation was necessary because the father admitted that he used to be a heavy user of alcohol and marijuana. She also suggested a mental health examination because of a pattern of general impulsiveness and instability in personal relationships, housing, and employment, the lack of hygiene, an apparent lack of awareness of or ability to respond to the needs of the child, and possible cognitive limitations. The father did not participate in a mental health or substance use evaluation. Nor did he attend a court-ordered court clinic evaluation.

The father contends that the judge made unsupported findings regarding his mental state, and that the judge's ultimate conclusion that the evidence "suggests some mental health issues" was thereby tainted. The trial judge did not make findings as to whether the father suffered from cognitive limitations, mental health issues, or substance use disorder. Rather, the judge found that the social worker's concerns were well founded because the constellation of all of the behaviors suggested that there may have been mental health or substance use issues. The father's failure to undergo evaluation left the father without an explanation for, mitigation of, or treatment for behavior which otherwise amply supports the judge's conclusion that the father is unfit to care for Zarek, and is likely to remain so for the indefinite future.

3. Grandfather. At the time of trial, the father was living with his father in an elderly housing residence that did not allow children. The paternal grandfather was previously convicted of rape of a child and indecent assault on a child, which the father acknowledged. The father testified that he did not plan to live with Zarek at the paternal grandfather's residence because children were not allowed to live there, but planned to secure alternative housing in the future. However, the father also testified that he did not "think it was a problem that [Zarek came] to [the] house even though [the paternal grandfather] is a registered sex offender." The father contends that the trial judge incorrectly found that the father "stated" that he would allow the paternal grandfather "unsupervised" and "unrestricted" access to Zarek. Even if the finding was in that sense erroneous, the determination of unfitness stands, where the ultimate conclusion of unfitness is supported by the record. See Adoption of Helen, 429 Mass. at 859-861 ; Care & Protection of Olga, 57 Mass. App. Ct. 821, 825 (2003).

Conclusion. Despite the moral overtones of the statutory term "unfit," the judge's decision was not a moral judgment regarding the father or his efforts, but rather a conclusion that the best interests of the child warranted termination of parental rights. That conclusion was supported by the evidence.

Decree affirmed.

      For example, he had visited a dentist four years earlier, but declined treatment. The father testified that if he received MassHealth, he would be able to have his teeth pulled while he was "asleep," which he preferred. The department social worker provided him an application for MassHealth, but he did not mail the application until a year later.

      As the judge put it, the father lived "a nomadic lifestyle, completely dependent on the kindness of others." The department attempted to follow up with the father regarding housing, health care, parenting classes, medical evaluations and the like, but he moved to New Hampshire with his girl friend and failed to respond to the department's efforts to contact him. When he did respond, he indicated a lack of interest in caring for Zarek, and stated that he needed to return to New Hampshire because his girl friend needed his help with her children. The move rendered him ineligible for MassHealth, thus frustrating efforts to obtain substance use and mental health evaluations. The father stated he was too busy looking for a job to sign up. When he did return to Massachusetts, he stated his intention to move into a shelter with a new girl friend and her daughter.


text:
    COMMONWEALTH v. Barbara ABERNATHY.
    17-P-693
    Appeals Court of Massachusetts.
    Entered: May 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant, Barbara Abernathy, was convicted of eight counts of disturbing the peace, six counts of violation of a harassment prevention order, two counts of criminal harassment, and one count of filing a false police report. On appeal, the defendant claims that (1) she had the ineffective assistance of counsel; (2) it was error to admit prior bad act evidence; (3) the judge failed to instruct the jury on prior bad act evidence; (4) it was error to admit the unredacted harassment prevention order; (5) the judge improperly admitted certain police testimony; (6) a portion of the sentence constituted a civil forfeiture violating her due process rights; and (7) it was error to place certain convictions on file without a proper colloquy and the defendant's consent.

Background. In June, 2012, the defendant bought and moved into a fourth-floor unit in a condominium complex. The victim lived directly below the defendant with his wife and two year old son in a unit that he and his wife had bought. Soon after the defendant moved into her unit, the victim heard loud noises, including "very loud stomping" and "heavy, loud thuds," coming from the defendant's unit. The victim tried to speak to the defendant about the noise, but to no avail. The noise increased in frequency and in strength. The victim also tried unsuccessfully to resolve the issue through the condominium association. The noise became so unbearable that the victim paid to have his bedroom ceiling soundproofed. This did little to mask the noise. He then began to report this conduct to the police.

After calling the police numerous times in February and March of 2013, the victim applied for and was granted a harassment prevention order pursuant to G. L. c. 258E. The ex parte order entered on April 12, 2013, and after a hearing on April 23, 2013, at which both parties were present, the order was extended to October 22, 2013. At a subsequent hearing, at which both parties were present, the order was extended for one year until November 18, 2014. The harassment prevention order did not deter the defendant. In total, the police were called to the condominium complex nearly forty-seven times between September, 2012, and April, 2013, for the most part due to complaints regarding the defendant.

Discussion. 1. Ineffective assistance of counsel. The defendant claims that nine of her convictions, charged in seven complaints, violated her right to a speedy trial pursuant to Mass.R.Crim.P. 36, 378 Mass. 909 (1979). Because defense counsel did not move to dismiss on this ground, the defendant claims that her counsel was ineffective because a motion to dismiss would have been allowed. She raises this claim for the first time on appeal.

Although the speedy trial claim was not raised below, "we assess whether ... counsel's error in failing to preserve this issue amounted to ineffective assistance of counsel." Commonwealth v. Denehy, 466 Mass. 723, 728 (2014). We review a claim of ineffective assistance by the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89 (1974). The defendant must show that the "behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer," depriving her of an "otherwise available, substantial ground of defence." Id. at 96. The defendant did not move for a new trial and the extant record does not provide us with indisputable proof of ineffective assistance of counsel. See Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

Rule 36(b)(1)(C) of the Massachusetts Rules of Criminal Procedure provides that a defendant is entitled to dismissal of charges brought against her if they are not tried "within twelve months after the return day in the court in which the case is awaiting trial." However, trial delays that a defendant "acquiesced in, was responsible for, or benefited from" are excluded from the twelve-month speedy trial calculation. Commonwealth v. Davis, 91 Mass. App. Ct. 631, 632 (2017), quoting from Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). As is the case here, the "failure to object to a continuance or other delay constitutes acquiescence." Commonwealth v. Tanner, 417 Mass. 1, 3 (1994).

Not only did the defendant not object to the continuances once the complaints were joined, she affirmatively assented to a continuance due to her attorney's unavailability. See Davis, supra. Her failure to object constitutes acquiescence. See Commonwealth v. Taylor, 469 Mass. 516, 524 (2014) (in order to preserve rule 36 rights, defendant must "explicitly and formally object, on the record, to each and every proposed continuance or delay"). Any motion to dismiss would have been futile. Accordingly, her counsel was not ineffective.

2. Prior bad act evidence. The defendant next contends that the Commonwealth's decision to file nolle prosequis on four of the charges at the conclusion of the evidence prejudiced her. She claims that because those charges were not dismissed or nolle prossed prior to trial, the jury heard otherwise inadmissible prior bad act evidence resulting in her being prejudiced. As there was no objection, we review to determine whether there was error, and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1977).

The Commonwealth filed the nolle prosequis at the urging of the trial judge to reduce jury confusion and for case management purposes. At the close of evidence, there remained twenty-three charges on thirteen complaints, and some charges appeared duplicative due to the defendant's ongoing conduct during different times on the same date. Generally, the Commonwealth is permitted to introduce evidence of prior bad acts to meet its burden of proof on the charge of criminal harassment. See G. L. c. 265, § 43A(a ). Moreover, some of the evidence of the defendant's conduct was the basis for other charges that were submitted to the jury. See Commonwealth v. DelValle, 443 Mass. 782, 790 (2005) (evidence of prior bad acts may be admissible if relevant for purpose of showing intent, motive, state of mind, or other relevant issue at trial). There was no error, let alone a substantial risk of a miscarriage of justice.

3. Jury instruction on prior bad acts. The defendant next contends that the judge should have sua sponte instructed the jury on prior bad act evidence. As there was no request from the defendant, nor an objection to the given instructions, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Resende, 476 Mass. 141, 153 (2017). The judge is not required to give such an instruction sua sponte, and none was required here. See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002). Also, the defendant's acquittal of two charges "demonstrate[d] a careful consideration of the evidence" by the jury. Commonwealth v. Dorazio, 472 Mass. 535, 543 (2015).

4. Unredacted harassment prevention order. The defendant next contends that it was error to admit the unredacted harassment prevention order. She contends that the following language was prejudicial: "[T]he Court determined that there is a substantial likelihood of immediate danger of harassment." Because there was no objection, we review for error, and if error is found, whether it created a substantial risk of a miscarriage of a justice. Freeman, supra.

While the existence of a harassment "prevention order itself is required to establish violation of the order," Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 109 (2014), the "substantial likelihood [language] ... has no place in a criminal trial." Id. at 108. Notwithstanding, defense counsel in his closing argument argued that many people obtain harassment prevention orders, but that, here, even if the defendant had been noisy, that did not satisfy the elements of the crimes charged. He also argued that as to the victim obtaining the harassment prevention order, "We don't know what he said, we don't know what the basis of it was." See Commonwealth v. Foreman, 52 Mass. App. Ct. 510, 515-516 (2001). Moreover, the Commonwealth did not emphasize or exploit the "substantial likelihood" language to prove that the defendant violated the order. Contrast Reddy, supra at 110. Although error, it did not create a substantial risk of a miscarriage of justice.

5. Sergeant Gunter's testimony. The defendant argues that the testimony of Sergeant Gunter regarding a conversation he had with an assistant district attorney was hearsay that created an "improper official imprimatur" of the defendant's guilt. Because the defendant did not object to the testimony, we review for error, and if error is found, whether it created a substantial risk of a miscarriage of justice. See Freeman, 352 Mass. at 563-564.

In his testimony, Gunter did not express his views-or those of the assistant district attorney-about the defendant's guilt. In addition, most of Gunter's testimony regarding the criminal harassment charge was brought was elicited by defense counsel. See Commonwealth v. Perez, 405 Mass. 339, 344 (1989) ("If the defendant had elicited the potentially prejudicial response, he cannot now complain of its prejudicial effect" [quotation omitted] ). There was no error.

5. Forfeiture of the condominium unit. The defendant contends that the judge's order that she stay away from her condominium unit, unless escorted by police, constituted a forfeiture requiring a jury trial. We disagree.

The defendant makes this contention for the first time on appeal, and "[o]ur system is premised on appellate review of that which was presented and argued below." Commonwealth v. Bettencourt, 447 Mass. 631, 634 (2006). Notwithstanding, the stay away order entered in this case does not constitute a civil forfeiture. Generally the Commonwealth seeks forfeiture when monies, real estate, or other property are "furnished or intended to be furnished by any person in exchange for a controlled substance." Commonwealth v. One 2004 Audi Sedan Auto., 456 Mass. 34, 37 (2010), quoting from G. L. c. 94C, § 47(a )(5). Forfeiture "results in total loss of the property." Commonwealth v. One 1972 Chevrolet Van, 385 Mass. 198, 201 (1982).

Here, the Commonwealth did not seek forfeiture, and the judge's order did not result in forfeiture of the unit. See G. L. c. 94C, § 47(b ). Rather, the stay away order is not unlike those set forth in harassment prevention and abuse prevention orders or bail conditions. Indeed, it was the defendant who, during the sentencing hearing, suggested that she sublet her apartment.

6. Convictions placed on file. Finally, the defendant contends, and the Commonwealth concedes, that the judge failed to conduct a colloquy and obtain her consent before placing nine convictions on file. Having reviewed the record, we agree that this was error and a remand for resentencing is required. See Commonwealth v. Simmons, 448 Mass. 687, 699-700 (2007).

Conclusion. On complaints numbered 13-1826, 13-1883, 13-2668, 13-2840, 13-5956, 14-153, 14-2914, charging disturbing the peace and on complaint numbered 13-2919, charging filing a false police report and disturbing the peace, we affirm the judgments of conviction, but vacate the sentences on those convictions and remand for resentencing. The remaining judgments are affirmed.

So ordered.

Affirmed.

      The defendant was charged with a total of twenty-eight counts arising from fourteen separate complaints. Prior to trial, the Commonwealth filed nolle prosequis on five counts of noise ordinance violations. At the close of evidence, the Commonwealth filed nolle prosequis on two counts of disturbing the peace, one count of a violation of a harassment prevention order, and one count of noise ordinance violation. The jury acquitted the defendant of two counts of intimidation of a witness.

      A different panel of this court affirmed the one-year order in a memorandum and order issued pursuant to our rule 1:28.

      The defendant was charged with two counts of violation of a harassment prevention order and two counts of disturbing the peace based on two separate incidents that occurred in the morning and evening of May 6, 2013. The Commonwealth filed nolle prosequis for one charge of disturbing the peace on one complaint and one charge of violation of a harassment prevention order on the other complaint. Similarly, the Commonwealth filed a nolle prosequi on one of two charges of disturbing the peace for an incident occurring on January 13, 2014. Lastly, the Commonwealth filed a nolle prosequi on one charge of violation of a municipal noise ordinance for an incident occurring on February 2, 2013.

      Relying on Commonwealth v. Gil, 393 Mass. 204, 217 (1984), the defendant also argues that the judge should have provided a limiting instruction to the jury before the harassment prevention order was admitted into evidence. This reliance is misplaced as Gil does not require a judge to provide a limiting instruction sua sponte. See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002).

      To be sure, the better practice is to redact the harassment prevention order prior to submitting it to a jury.

      The stay away order expires when both the harassment prevention order and the defendant's probation term have expired. It is not, as the defendant suggests, permanent.

      The defendant incorrectly states that ten convictions were placed on file. According to the docket sheets, the defendant was convicted of seventeen charges and received sentences on eight with the remaining nine being placed on file.


text:
    COMMONWEALTH v. Thuy DUONG.
    16-P-1755
    Appeals Court of Massachusetts.
    Entered: May 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a one-day jury trial in the Dorchester Division of the Boston Municipal Court, the defendant, Thuy Duong, was convicted of witness intimidation in violation of G. L. c. 268, § 13B. On appeal, the defendant contends that the judge wrongly denied her motion for a required finding of not guilty because the evidence was insufficient to support her conviction. The defendant further argues that the jury instructions were erroneous. We discern no cause to disturb the judgment and affirm, addressing the defendant's claims in turn.

Background. On February 24, 2016, the victim, Vem Thi, who was in her seventies, appeared at the Dorchester Division of the Boston Municipal Court prepared to testify in a criminal proceeding against her former landlord, "Bach," for hitting her in the face. Before taking the stand, the victim received three to five telephone calls from the defendant, who identified herself as Bach's wife and asked the victim to testify that she had fallen and that Bach never hit her. The defendant further stated, "[T]hings will happen ... [and i]f you say Bach hit [you], then there will be serious thing[s]." Later that day, the victim went and reported those telephone calls to the Boston police department. At trial, the victim confirmed that the caller was the defendant.

Discussion. 1. Sufficiency of the evidence. In reviewing the judge's denial of the defendant's motion for a required finding of not guilty, we must determine whether any rational jury, when considering all the evidence in the light most favorable to the Commonwealth, could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Ruci, 409 Mass. 94, 96 (1991), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The defendant claims that her motion should have been allowed because there was no evidence that the defendant threatened or intimidated the victim. Here, the judge did not err in denying the defendant's motion, as sufficient evidence was presented for a rational trier of fact to conclude that the defendant was guilty of witness intimidation beyond a reasonable doubt.

General Laws c. 268, § 13B, as appearing in St. 2006, c. 48, § 3, provides in relevant part: "Whoever, directly or indirectly, willfully ... threatens, or attempts or causes physical injury[ ] [or] emotional injury ... to ... or ... intimidates or harasses another person who is ... a witness or potential witness at any stage of a criminal ... trial or other criminal proceeding of any type ... shall be punished."

Neither party disputes that the defendant had called the victim on February 24, 2016, before the victim was to testify against Bach in a criminal trial. The defendant further admits to telling the victim that "serious thing[s]" would happen if she testified. Still, the defendant argues that she said nothing in those telephone calls that could be interpreted as threatening, claiming that "serious thing[s]" referred to the serious consequences Bach faced at trial, and that there was no testimony that the victim even understood those words as threatening or emotionally upsetting. Given the victim's testimony and the context of those communications, including the parties somewhat strained landlord-tenant relationship and the victim's allegation that she had been previously hit by Bach, we disagree.

"Intimidation, according to the cases, is putting a person in fear for the purpose of influencing his or her conduct." Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998). In determining whether the defendant made a threat, the statements should not be considered in isolation, but may be considered in light of the context in which they were made and all of the surrounding circumstances. See Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613 (2007). In addition, statements may be characterized as a threat without "an explicit statement of an intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response." Commonwealth v. Chou, 433 Mass. 229, 234 (2001).

At trial, evidence of witness intimidation was supported by the testimony of the victim, who stated that the defendant initiated each of the telephone calls. In addition, the defendant, not the victim, directed the conversation. The time and the circumstance of the contact, just before the victim was going to testify, strongly suggest that it was a matter of urgency, see Commonwealth v. Robinson, 444 Mass. 102, 110 (2005), and that the defendant informed the victim that the victim would face "serious" and adverse consequences if she did not comply, as opposed to what would happen to Bach if the victim did testify. After having received the defendant's calls, the victim reacted by going to the Boston police department later that day and reporting the statements. See Chou, supra. In light of the evidence presented, including the victim's relationship with the defendant and Bach, a rational jury could have concluded that the evidence was sufficient to support a conviction under G. L. c. 268, § 13B.

2. Jury instructions. The defendant did not object to the jury instructions at trial, but argues on appeal that the judge should have defined the meaning of the word "harassment," because the defendant was "charged under section A of the statute ... [and h]arassment ...is contained in section C of the statute." The defendant contends that the absence of such a definition constituted an error in the jury instruction that was "likely dispositive of the case and thereby substantially risked a miscarriage of justice." We disagree.

A substantial risk of a miscarriage of justice arises "if the evidence and the case as a whole [leave the reviewing court] with a serious doubt that the defendant['s] guilt had been fairly adjudicated." Commonwealth v. Amirault, 424 Mass. 618, 646-647 (1997) (citation omitted). Here, the complaint does not limit the Commonwealth to the theory of intimidation in § 13B(1)(a ), but includes the terms "intimidate or harass." As such, the judge properly instructed the jury that the Commonwealth must prove beyond a reasonable doubt that the defendant "directly or indirectly threatened, attempted to cause emotional injury or caused emotional injury, intimidated or harassed another person."

Furthermore, this case is distinguishable from the case on which the defendant relies, Commonwealth v. Conley, 34 Mass. App. Ct. 50 (1993). The judge in this case properly recited the elements that the Commonwealth was required to prove, unlike in Conley where the judge omitted an essential element of the crime of witness intimidation with the likely result of confusing or misleading the jury. See id. at 55-56. There was no error.

Judgment affirmed.


text:
    L.H. v. L.H.
    17-P-369
    Appeals Court of Massachusetts.
    Entered: May 15, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, L.H., appeals from the extension of a harassment prevention order (order) issued pursuant to G. L. c. 258E, § 3. Concluding that the order never should have issued, we reverse.

"In reviewing a civil harassment order under G. L. c. 258E, we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed '[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property.' " A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting from G. L. c. 258E, § 1. Accord J.C. v. J.H., 92 Mass. App. Ct. 224, 227 (2017).

Here, the female plaintiff and male defendant live in adjoining apartments. The defendant is unhappy with the noise coming from the plaintiff's apartment and believes that the plaintiff intentionally bangs on the wall to disturb him. In response, he has repeatedly called the police to complain about the noise. The plaintiff did not specify in her testimony the number of times that the defendant called the police, but her affidavit (which the judge considered without objection) stated that the police responded to her apartment four times in an unspecified timeframe. There is no evidence that the defendant at any point made any misrepresentations of fact to the police.

On February 7, 2017, both parties appeared in Boston Municipal Court seeking harassment prevention orders against each other. After hearing from both parties, the Boston Municipal Court judge denied the instant defendant's complaint and granted a six-month harassment prevention order to the instant plaintiff.

This case is controlled by Gassman v. Reason, 90 Mass. App. Ct. 1 (2016). There, as here, a neighbor called the police four times to complain about noise. Id. at 4. We found that such complaints provide "no evidence that [the defendant] intended to cause any harm at all to [the plaintiff], much less that [the defendant] wilfully committed three or more acts, aimed at [the plaintiff], each with the intent to cause fear, intimidation, abuse, or damage to property." Id. at 9. "Nor can repeated complaints about noise from the upstairs apartment reasonably be described as intimidation, intending to cause fear of physical harm or damage to property." Ibid. As the evidence here fell far short of that required to support the issuance of a harassment prevention order, the order should not have issued.

Order dated February 7, 2017, reversed.

      During argument, the plaintiff stated that it was six or seven times over two months. Even if this could be considered evidence, it would not change our analysis.

      The judge's adjudication was hampered by the unprofessional conduct of the plaintiff's attorney. It should be noted that counsel appropriately expressed her deep regret for this conduct both in her briefing and in oral argument before this court.