text:
    Diane LAWLESS v. DEPARTMENT OF UNEMPOYMENT ASSISTANCE & another.
    17-P-156
    Appeals Court of Massachusetts.
    Entered: April 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Town of Freetown.

   The town of Freetown (employer or town) appeals from a judgment of the District Court awarding the claimant unemployment benefits after concluding that the employer failed to show that the claimant engaged in deliberate misconduct in wilful disregard of the employer's interest. G. L. c. 151A, § 25(e )(2). For the reasons set forth below, we reverse.

Background. The claimant worked as a treasurer for the town. Her direct supervisor was the town administrator (administrator). The board of selectmen for the town (board of selectmen) supervised the administrator and also supervised the claimant.

On March 24, 2015, the claimant met with a town clerk to discuss the clerk's work performance. During the meeting, the clerk became upset, left the meeting, and went to the administrator's office. The claimant followed the clerk to the administrator's office. The administrative assistant to the administrator informed the clerk that the administrator was not present. The administrative assistant subsequently called a member of the board of selectmen (selectman) and informed the selectman that the clerk was crying in the administrator's office after a confrontation with the claimant. The selectman informed the administrative assistant that the claimant was to leave work and not return to work the following day. This information was relayed from the administrative assistant to the claimant at that time. The claimant then called the administrator, who told the claimant to go home, and further stated that he would speak with her the following day. The next day, the claimant returned to work at approximately 7:00 A.M. , an hour before her usual start time, and downloaded files containing town financial data onto a flash drive. The administrative assistant saw the claimant at work and informed the administrator, who instructed the claimant to leave work immediately.

One day later, on March 26, 2015, the administrator mailed a letter to the claimant confirming that she had been placed on paid administrative leave. The board of selectmen subsequently voted to discharge the claimant on June 22, 2015, for improperly downloading employee and taxpayer information onto a flash drive that was taken out of the workplace, and for appearing at work after having been told to leave and to not return.

The claimant filed a claim for unemployment benefits with the Department of Unemployment Assistance (DUA) on July 8, 2015. On July 18, 2015, DUA initially determined that the claimant was not entitled to unemployment benefits. The claimant appealed, and, after conducting a two-day evidentiary hearing on the matter, a DUA hearing officer determined that the claimant was not entitled to unemployment benefits. The hearing officer concluded that "the employer established by substantial and credible evidence that the claimant's discharge was due to deliberate misconduct in willful disregard of the employer's interests" because (1) she returned to work after she was instructed not to do so, and (2) she downloaded taxpayer information onto flash drives without prior authorization. DUA's board of review affirmed the hearing officer's decision solely on the basis that the claimant deliberately reported to work after having been directed not to do so by a selectman.

The claimant subsequently appealed the decision of the board of review to the District Court pursuant to G. L. c. 151A, § 42. The District Court judge reversed the decision of the board of review after concluding that there was no substantial, credible evidence indicating that the selectman instructed the claimant to not return to work, and that the selectman acting alone did not have the authority to order the claimant to not return to work; rather, the board of selectmen must make that decision as a collective body.

Discussion. "We review the decision of the board [of review] according to the standards set forth in G. L. c. 30A, § 14(7), giving 'due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.' " Athol Daily News v. Board of Review of Div. of Employment & Training, 439 Mass. 171, 174 (2003), quoting from G. L. c. 30A, § 14(7). "The agency's decision may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law." Coverall N. America, Inc. v. Commissioner of Div. of Unemployment Assistance, 447 Mass. 852, 857 (2006). See G. L. c. 30A, § 14(7).

In determining whether G. L. c. 151A, § 25(e )(2), precludes a claimant from receiving benefits, the board of review must find that the claimant engaged in "deliberate misconduct," and that such misconduct was in "wilful disregard" of the employer's interest. Jean v. Director of Div. of Employment Sec., 391 Mass. 206, 208 (1984). "[T]he 'critical factual issue' in considering whether an employee's alleged misconduct is in wilful disregard of his employer's interest is the employee's state of mind at the time of the misconduct." Id. at 209, quoting from Torres v. Director of Div. of Employment Sec., 387 Mass. 776, 779 (1982). In making a determination as to the employee's state of mind at the time of the misconduct, the board of review must consider "the worker's knowledge of the employer's expectation, the reasonableness of that expectation and the presence of any mitigating factors." Garfield v. Director of Div. of Employment Sec., 377 Mass. 94, 97 (1979).

The board of review properly found that substantial evidence was presented indicating that the claimant engaged in deliberate misconduct, as the claimant herself admitted when she acknowledged that she attended work following the March 24 incident after being told not to do so by a selectman. Furthermore, the board of review correctly found that the claimant's actions were in wilful disregard of the employer's interest. There was substantial evidence before the hearing officer that the claimant was aware of the employer's expectation that she not return to work after the March 24 incident with the clerk. As the claimant herself stated during the hearing, she was told, albeit indirectly, not to return to work the day after the incident by a selectman. As the board of review further found, the expectation that the claimant not attend work the day after making the clerk cry during a meeting was reasonable because it gave the employer time to address the conflict while simultaneously reducing the likelihood that another incident would arise between the claimant and the clerk. Finally, the justifications that the claimant gave for attending work after being told not to do so were not credited by the hearing officer. See Trustees of Deerfield Academy v. Director of Div. of Employment Sec., 382 Mass. 26, 31 (1980) ("The responsibility for determining the credibility and weight of ... testimony rests with the hearing officer"). The board of review thus correctly found that there were no mitigating factors presented indicating that the claimant did not wilfully disregard the directive of the selectman. In sum, the board of review properly determined that the claimant was not entitled to unemployment benefits pursuant to G. L. c. 151A, § 25(e )(2). ,

Judgment reversed.

      Much of the pertinent evidence before the hearing officer was based on the firsthand knowledge of the claimant and the other testifying witnesses. The hearsay testimony offered-the statement of the selectman relayed through the administrative assistant-was not contradicted by any other evidence during the hearing. Contrast Goodridge v. Director of Div. of Employment Sec., 375 Mass. 434, 437 (1978).

      The claimant's argument that a single member of the board of selectmen did not have the authority to order the claimant not to return to work was not adequately raised during the administrative proceedings and thus should not have been considered by the judge. See Green v. Brookline, 53 Mass. App. Ct. 120, 128 (2001).

      The claimant also argues that she was erroneously denied the right to cross-examine the administrator as to the terms of the claimant's employment contract and the political facets of the board of selectmen. We see no error in the board of review's decision that the claimant has failed to show how this prejudiced her, as those issues were not relevant to the conduct that led to the claimant's termination and the ultimate issue whether the claimant's conduct constituted deliberate misconduct in wilful disregard of the employer's interest. See Matter of Foley, 439 Mass. 324, 336 n. 13 (2003).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. David F. LEMAIRE, Jr.
    16-P-1590
    Appeals Court of Massachusetts.
    Entered: April 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the District Court, the defendant was convicted of assault and battery on a family or household member, and threatening to commit a crime. He now appeals, arguing that the judge committed prejudicial error by admitting in evidence a recording of a 911 telephone call made by an eleven year old child who did not testify. The defendant contends that the recording contained testimonial hearsay statements, thus violating the rules of evidence, and his right, under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, to confront witnesses against him. We disagree and therefore affirm the defendant's convictions.

The recording at issue contained the voice of an eleven year old girl, who called the police emergency 911 line to ask for police intervention, saying her stepfather was "hurting [her] mom." She continued, "He's hurting my mom. He's throwing her on the ground, knocking her against the wall.... I'm in the bathroom.... Oh, please help.... Oh my God, please hurry." There is other conversation heard on the recording, as the police dispatcher, who testified at trial, asked some follow-up questions about the location of various family members in the house and also relayed the child's information to responding police officers.

The recording at issue was admitted, over objection, as an excited utterance, an exception to the hearsay rule. Because of her age, the eleven year old female caller was "unavailable" to testify at trial, and therefore the defendant did not have an opportunity to cross-examine her. The statements are admissible only if they pass a two-prong test. "First, the statement must be admissible under our common-law rules of evidence as an exception to the hearsay rule. Second, the statement must be nontestimonial for purposes of the confrontation clause of the Sixth Amendment." Commonwealth v. Beatrice, 460 Mass. 255, 258 (2011) (citations omitted).

First, the child caller's statements qualify under the spontaneous utterance exception to the hearsay rule, because, in making the statements, she was reacting to a startling event-her mother being "hurt" by her stepfather-that she witnessed prior to placing the 911 call, and that she believed was ongoing at the time that she was speaking with the police dispatcher. A statement is considered "[a] spontaneous [or excited] utterance if (A) there is an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and (B) the declarant's statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought." Mass. G. Evid. § 803(2) (2017). "While the degree of excitement exhibited by the declarant is one factor relevant to that determination, see Commonwealth v. Beatrice, 460 Mass. [at] 258-259..., the essential issue is whether the statement was made under the stress of an 'exciting event and before the declarant has had time to contrive or fabricate the remark, and thus ... has sufficient indicia of reliability.' Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990). See Commonwealth v. Mulgrave, 472 Mass. 170, 179 (2015).... In addition to demeanor, our cases have identified other factors relevant to the inquiry, such as whether the declaration is made in the same location as the traumatic event, Zagranski, supra at 284-286; the circumstances of the statement, including its temporal proximity to the event, Mulgrave, supra at 177; the young age of a 911 caller, Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 42 (2016) ; and the degree of spontaneity demonstrated by the declarant, Commonwealth v. Joyner, 55 Mass. App. Ct. 412, 416-417 (2002). In short, the question is not simply whether the declarant shows any particular form of 'excitement,' but, rather, whether the declarant was acting spontaneously under the influence of the incident at the time the statements were made, and not reflectively." Commonwealth v. Baldwin, 476 Mass. 1041, 1042 (2017). See Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315, 318 (2016).

During the voir dire hearing in the present case, the judge heard evidence that, when the first responding officer, police Chief Williams (who had been nearby), arrived on the scene, he went to the back of the house and heard an adult male voice coming from inside and "yelling, screaming." Through the glass in the door he saw the defendant "flee, leaving the kitchen"; he later determined that the defendant had left the house. The female victim then came and unlocked the back door, letting Williams into the house. He testified that the victim "appeared to be upset. She was crying. Her face was red." Williams confirmed there were three children in the house, and found the child 911 caller upstairs in her bedroom, still talking on the telephone with the 911 dispatcher; Williams observed that the child was "excited" and "sounded very scared."

This evidence "provided the trial judge with a firm basis for his conclusion that [the child caller's] initial statements to [the police dispatcher] were the product of the ordeal she had just experienced and not the result of conscious reflection." Rodriguez, supra at 319. Based on these facts, we are satisfied that the child's statements on the 911 recording "fell squarely within the spontaneous utterance exception, and its admission did not constitute error." Commonwealth v. Gomes, 475 Mass. 775, 788 (2016).

Next, the statements in the 911 telephone call-by both the child caller and the police dispatcher-were not testimonial within the meaning of the confrontation clause, as they were made for the primary purpose of meeting an ongoing emergency. See Beatrice, 460 Mass. at 258-259. "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Id. at 259, quoting from Davis v. Washington, 547 U.S. 813, 822 (2006). "The existence of an ongoing emergency must be objectively assessed from the perspective of the parties to the interrogation at the time, not with the benefit of hindsight. If the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief was later proved incorrect, that is sufficient for purposes of the Confrontation Clause." Id. at 259-260, quoting from Michigan v. Bryant, 562 U.S. 344, 361 n.8 (2011).

Clearly, the challenged statements here were made during an ongoing domestic violence incident, and were not about past events. The incident occurred in the child caller's home, between her mother and her stepfather, the eleven year old caller (and her siblings) sounded distressed during the call, and when Williams arrived at the home, the victim and the child caller were visibly upset and scared. This evidence was sufficient to "lead a reasonable person to believe that there was an emergency" at the time the child caller placed the 911 call. Beatrice, supra at 259 (quotation omitted).

In addition, the defendant was in the home during the call, moving from the kitchen to the basement and back to the first floor, until he fled upon police arrival; the police dispatcher's questions were asked for the purpose of enabling the police to understand the ongoing emergency and obtain medical care for the victim, as well as for the police to secure the scene, apprehend the defendant, and stop the ongoing assault. Compare Rodriguez, 90 Mass. App. Ct. at 326. "The 911 telephone call was not testimonial because the primary purpose of the interrogation was to meet an ongoing emergency, rather than to prove past events to develop a case for criminal prosecution." Beatrice, supra at 264.

Based on the foregoing, we discern no error in admitting in evidence the recording of the 911 telephone call.

Judgments affirmed.

      The defendant was acquitted of separate charges of assault and battery on each of his two children. Prior to trial the Commonwealth dismissed charges of reckless endangerment of a child and intimidation of a witness.

      Prior to trial, and after hearing, the Commonwealth's motion in limine to admit the recording was allowed; the defendant's motion to exclude it was denied.

      During the call, the child identified herself, her mother, and the defendant, and provided her home address where the incident was occurring. As noted, she said that her parents were "downstairs in the kitchen" and her "dad's fighting with my mom, and my dad's hurting my mom"; "[h]e's throwing [her mom] on the ground, knocking her against the wall"; "Oh, please help"; "Oh, my God, please hurry"; "Hurry, please." At one point during the call she told the dispatcher that her father "went downstairs, and then he went back up," and that "[h]e's down cellar." She also said that she was calling from the bathroom, then from "upstairs in [her] room." She informed the dispatcher that her eight year old brother and six year old sister were downstairs, then later in the room with her. Several times during the call, after hearing sounds of distress from the children, the dispatcher told the caller to "stay calm."


text:
    COMMONWEALTH v. Arnaldo FLORES.
    17-P-97
    Appeals Court of Massachusetts.
    Entered: April 17, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant, Arnaldo Flores, was convicted of murder in the second degree and possession of a firearm without a firearm identification card. On direct appeal, he argued, inter alia, that the Commonwealth presented insufficient evidence to sustain the murder conviction because he was attacked by an armed drug dealer and acted in self-defense, the judge gave a flawed self-defense instruction and omitted an instruction on reasonable provocation, and trial counsel rendered ineffective assistance. A panel of this court affirmed the convictions in an unpublished decision pursuant to our rule 1:28. See Commonwealth v. Flores, 84 Mass. App. Ct. 1110 (2013).

The defendant subsequently filed a motion for a new trial contending, among other claims, that he was denied his constitutional right to a public trial and received ineffective assistance of counsel because his attorney failed to introduce Adjutant evidence. See Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005). The motion judge, who was also the trial judge, held a three-day evidentiary hearing and denied the motion in a comprehensive written memorandum of decision and order. The defendant also filed a motion for postconviction discovery, which the same judge denied in similar fashion. The defendant appeals from the orders denying those motions. We affirm.

Discussion. The facts relating to the murder and the ensuing trial are detailed in the judge's memorandum of decision and order on the defendant's motion for new trial, and need not be repeated here.

1. Public trial. Relying essentially on testimony from the hearing on the motion for a new trial, the defendant on appeal argues that a court room closure occurred during jury selection, and, therefore, that his constitutional right to a public trial was denied. See generally Presley v. Georgia, 130 S. Ct. 721 (2010) (per curiam). The motion judge disagreed with this contention in her memorandum of decision and order, and found that the court room had been open during jury selection. She based this conclusion on her knowledge of her standard practices, her review of the trial transcript and record, and her personal recollection of the trial proceedings. See Commonwealth v. Grace, 370 Mass. 746, 751-753 (1976). Furthermore, she explicitly did not credit the testimony of the defense witnesses concerning the claimed court room closure. See Commonwealth v. Schand, 420 Mass. 783, 787 (1995) (noting that, in regards to motions for new trial, the motion judge is "the final arbiter of matters of credibility"). We discern no error in the judge's thorough findings and no abuse of discretion in her determination that the defendant did not sustain his burden of demonstrating that the public was generally or partially excluded from jury empanelment. See Grace, supra.

The defendant responds by pointing to the judge's own comments during jury selection, which, he contends, undermine the judge's conclusion. Specifically, he notes that, while going over the jury selection process with the defendant, the judge stated, "Everyone is to remain out of the courtroom during this process." However, the judge addressed this statement in her memorandum of decision and order when she found, although she "mis-spoke": "No instruction or order ever issued from the Court closing the courtroom. The Court is convinced that no court officer cleared the courtroom when the Court made the statement at issue or at the outset of the [e]mpanelment." Furthermore, the judge noted that "[i]t was not standard practice for court officers, in the presence of this judge, to ask the public, by words or gestures, to leave the courtroom during jury selection even when the courtroom was crowded." To the contrary, as the judge ruled:

"The Court is confident that no such instruction was given in this judge's presence. This judge was particularly vigilant in ensuring that accommodations were made for the public to attend all phases of a trial, including jury selection, both general and individual voir dire. This judge has never heard a court officer ask persons who were present in a courtroom in Fall River during pre-[e]mpanelment hearings to leave the courtroom because the venire was being brought down. The Court has never heard a court officer ask members of the public present for general voir dire in a courtroom in Fall River to leave because voir dire was about to commence."

Here again, the judge's findings are clear and supported by the record, her routine practice, and her personal recollection of this case. See Schand, supra ("The judge's findings of fact are to be accepted if supported by the evidence").

Finally, the judge recounted in her memorandum of decision and order that on the final day of trial the prosecutor asked for a joint representation from defense counsel that the court room had been open to the public during all stages of trial, including jury empanelment. The transcript reveals that defense counsel responded that he "wasn't aware of anybody being excluded at all," and the judge noted for the record that the trial had been open at all times. Thus, even the trial record itself undercuts the argument being proffered for the first time in the motion for a new trial. The judge did not abuse her discretion in denying the motion, which was based on the defendant's self-serving claim.

2. Adjutant claims. The defendant next claims that the judge abused her discretion in denying his motion for a new trial because trial counsel was ineffective for failing to introduce the decedent's convictions from Puerto Rico in evidence. He further argues that the judge erred in excluding Adjutant evidence. For the myriad reasons detailed by the judge in her memorandum of decision and order, the claims are unavailing.

As the judge found, the evidence against the defendant was strong, and the defendant failed to articulate what specific evidence would have been admitted to demonstrate that the decedent had initiated the violence in the alleged prior incidents of violence. See Commonwealth v. Gaynor, 73 Mass. App. Ct. 71, 73-74 (2008). Indeed, as the judge correctly found, the defendant's proffer at trial "contained no underlying facts establishing whether the incidents at issue met the standard for Adjutant evidence." The mere existence of a record of prior convictions, without any evidence demonstrating that the victim "likely initiated" the violence in those instances, is insufficient to satisfy the foundational requirements for the admission of Adjutant evidence. Adjutant, 443 Mass. at 653 n.4. See Gaynor, supra. Furthermore, the judge had broad discretion in determining whether the proper foundation for Adjutant evidence had been met. See Adjutant, 443 Mass. at 664 ; Gaynor, supra at 75. On the record before us, we cannot say that the judge abused that discretion. ,

Order denying motion for new trial affirmed.

Order denying motion for posttrial discovery affirmed.

      The judge based her findings on "the trial transcript, the credible testimony presented and exhibits submitted at a three-day evidentiary hearing, and the reasonable inferences drawn therefrom, as well as upon [her] own recollections and knowledge of the Court's standard practices."

      The defendant mainly relies on his own testimony and that of his mother and sister.

      In regards to the defendant's related ineffective assistance claim, we further agree with the judge's determination that even assuming a court room closure had occurred, the defendant has not met his burden of establishing prejudice resulting therefrom. See Commonwealth v. LaChance, 469 Mass. 854, 858-859 (2014). See also Weaver v. Massachusetts, 137 S. Ct. 1899, 1910-1911 (2017).

      To the extent that we do not discuss other arguments made by the defendant, including the claim that the judge abused her discretion in denying his motion for postconviction discovery, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

      We acknowledge the information provided to this court by the defendant pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247 (1982), and 22(c), as amended, 418 Mass. 1601 (1994).


text:
    COMMONWEALTH v. Leary E. BRUCE (and a companion case ).
    17-P-273 17-P-286
    Appeals Court of Massachusetts.
    Entered: April 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Commonwealth vs. David Williams.

   The defendants, Leary E. Bruce and David Williams, were each indicted on one count of trafficking in cocaine. Both appeal from the order denying their motions to suppress physical evidence and statements obtained as a result of the routine traffic stop that led to their arrests. They argue, among multiple other claims of error, that the Superior Court judge should have allowed the motions because the State trooper prolonged the traffic stop for longer than what was reasonably necessary to effectuate its purposes. We agree and thus reverse.

Background. We summarize the judge's factual findings, supplemented with undisputed testimony that she implicitly credited. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). State Trooper Joshua Rucho was on patrol in Springfield when, at approximately 1:25 A.M. , he observed a vehicle traveling in the opposite direction with an unlit rear license plate. Rucho made a U-turn and activated his spotlight and emergency blue lights to signal the vehicle to stop. Instead of stopping immediately, the vehicle traveled about 130 feet before pulling into the parking lot of a condominium complex.

Rucho observed three occupants in the vehicle: a white female in the driver's seat; a black female, later identified as Bruce, in the front passenger seat; and a black male, later identified as Williams, in the back seat. While the driver was retrieving her license and registration, Rucho asked her where she was traveling to and where she was coming from. The driver stated that she was going home to Brattleboro, Vermont, after picking up her two passengers at "the chicken place." When Rucho asked who the passengers were, the driver identified the front seat passenger, Bruce, as "J" and the back seat passenger, Williams, as "T." The driver's voice was trembling, and she appeared shaky.

Rucho observed that neither defendant was wearing a seatbelt and asked for identification so he could issue citations. Williams produced a New York State driver's license. Bruce did not have a license but verbally gave her full name, "Leary Bruce," and her date of birth. Noticing that the names provided by the defendants did not match the initials provided by the driver, Rucho asked the driver again about her passengers. She replied that they were friends of friends. When Rucho then asked why she pulled into the parking lot, the driver stated that she thought the condominium complex was a hotel. Rucho found this response to be suspicious because the driver had earlier told him that she was going home to Brattleboro.

"[D]ue to the inconsistent stories," Rucho called for back-up and asked the driver to exit the vehicle. Once she did so, Rucho again asked for information about the passengers. The driver continued to maintain that the front seat passenger was "J" or "Jasmine" and the rear seat passenger was "T." She also stated that they were friends of her boy friend and were in town for the weekend as she and her boy friend were getting married.

After Trooper Kenneth Belben arrived at the scene, Rucho went to Williams and asked how he knew the driver and Bruce. Williams replied that he met the driver online. "[D]ue to his story being different from the [driver's] story," Rucho ordered Williams out of the car and conducted a patfrisk for weapons, finding none. Rucho then asked Williams why he was going to Vermont. Williams replied that he and Bruce had met the driver online and that they had come to the area to "have a good time." He also stated that he and "Leary" had been dating for one or two months but he did not know her last name. At this point Rucho handcuffed Williams and placed him in the cruiser, stating that he was doing so "for everyone's overall safety ... so [he] could further investigate the motor vehicle stop."

Rucho next ordered Bruce to exit the vehicle. Upon questioning, Bruce stated that she and "David" had been in a sexual relationship for about one month but she did not know his last name. When asked how she knew the driver, Bruce did not respond.

Rucho returned to the driver and stated that he did not believe their stories and thought they were engaged in illegal activity because "the [Interstate] 91 corridor ... is known for the trafficking of narcotics." The driver denied that there were drugs in the vehicle and consented to a search. In the back seat, Rucho found a backpack containing empty wax paper bags, which he recognized as the type that could be used for packaging heroin. After giving the driver Miranda warnings, Rucho advised her of what he found and that he suspected there were drugs either in the vehicle or on one of the occupants. The driver became upset, denied any knowledge of drugs in the vehicle, and said she had been told to pick up the two passengers. Rucho proceeded to give Miranda warnings to the defendants, each of whom denied having drugs.

As Rucho continued to search the vehicle, Belben saw Bruce looking nervously towards Williams, who was still seated in the cruiser. Belben told Bruce that he suspected she had drugs on her person, prompting her to reply that "if she was going to give them up, ... it was on her, she was totally responsible for it, and David had nothing to do with it." Upon learning of these statements, Rucho advised Bruce that he knew she had admitted having drugs and asked if she would be willing to retrieve them. She responded affirmatively, went into Belben's cruiser, and reached into her underwear and produced a cylinder-shaped item, which was hard and white and wrapped in a rubber glove. Rucho believed that the item was "crack" cocaine.

Rucho then asked the driver whether there was heroin in the vehicle. She again became upset and stated that her only purpose was to give the passengers a ride and that she knew they would be transporting drugs but did not know what kind. Eventually, Rucho released the driver after giving her a summons for defective equipment and conspiracy. He arrested both defendants and transported them to the police barracks, where Williams gave a statement admitting that the backpack was his.

Discussion. "In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error" but "review independently the application of constitutional principles to the facts found." Commonwealth v. Amado, 474 Mass. 147, 151 (2016), quoting from Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). Although the defendants challenge the judge's decision on multiple grounds, we need address only one-that Rucho unreasonably prolonged what should have been a routine traffic stop.

"A routine traffic stop may not last longer than 'reasonably necessary to effectuate the purpose of the stop.' " Commonwealth v. Cordero, 477 Mass. 237, 241 (2017), quoting from Amado, 474 Mass. at 151. Thus, absent reasonable suspicion of criminal activity that justifies further inquiry, "[p]olice authority to seize an individual ends 'when tasks tied to the traffic infraction are-or reasonably should have been-completed.' " Id. at 242, quoting from Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015).

Assuming the legitimacy of the initial stop, Rucho was allowed to make "inquiry into the status of the driver as a licensed operator and the registration of the automobile." Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 470 (1996). He was also justified in prolonging the stop to issue the defendants citations for the seatbelt violations. See Cordero, 477 Mass. at 242. But once Rucho obtained a license and registration from the driver, a license from Williams, and Bruce's full name and birth date, he had all of the information reasonably necessary to issue the respective citations. At that point, unless he had other justification for prolonging the stop, he should have written the citations and permitted the group to leave. See Commonwealth v. Torres, 424 Mass. 153, 158 (1997) (absent other justification, "police inquiry in a routine traffic stop must end on the production of a valid license and registration"); Cordero, 477 Mass. at 247 ("[B]y the time the trooper finished discussing with the defendant the broken lights and the window tint, the investigation of the civil traffic violations was complete ..., and the defendant should have been allowed to drive away"); Bartlett, 41 Mass. App. Ct. at 471 ("If the driver produces a valid license and registration, there is ordinarily no reason for an officer to probe further").

The Commonwealth contends that Rucho was warranted in investigating further because of the supposed inconsistency between the names given by the defendants and the initials given by the driver. But even accepting that he genuinely considered this to be an inconsistency (despite it being clear that the driver did not know her passengers' full names), Rucho had enough information from the defendants themselves to verify their identities without making inquiry of the driver. This was "not a 'swiftly developing situation' that prevented verification or disproof of the officer's suspicions regarding the defendant[s'] identit[ies] ... through routine computer or radio checks." Commonwealth v. Santos, 65 Mass. App. Ct. 122, 126 (2005), quoting from Commonwealth v. Sinforoso, 434 Mass. 320, 325 (2001). Although the Commonwealth asks us to assume that Rucho did try to confirm the defendants' identities-because "no evidence" was presented at the hearing that he did not-the burden of proof at the hearing was on the Commonwealth, not on the defendants. See Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007). Rucho did not testify, and the judge did not find, that he ran any sort of records check once he received the defendants' identifying information, which would have revealed that he did in fact have their true names. To the contrary, the only reasonable inference from Rucho's testimony is that he did nothing with the information. Instead, he immediately called for back-up, ordered the occupants out of the vehicle and continued to question them, and searched the vehicle and Williams's backpack while Williams sat handcuffed in the cruiser. These actions plainly exceeded what was reasonably necessary to issue citations for the civil traffic infractions.

The continued detention of the defendants was therefore unlawful unless Rucho had reasonable suspicion that "there [was] further criminal conduct afoot ... based on 'specific and articulable facts' " of criminal activity. Cordero, 477 Mass. at 243, quoting from Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert. denied, 546 U.S. 1187 (2006). The Commonwealth concedes that the earliest Rucho could have possibly formed reasonable suspicion was when he discovered the wax paper bags in Williams's backpack. Thus, as Rucho had no additional justification for inquiring further once the defendants turned over their identifying information, the motions to suppress should have been allowed.

Order denying motions to suppress reversed.

      A single justice of the Supreme Judicial Court allowed the defendants' applications for leave to file an interlocutory appeal. The appeals were not formally consolidated but arise from the same proceedings and were heard together at oral argument.

      Although Williams concedes that the initial stop was lawful, Bruce argues that it was not because the Commonwealth "failed to prove that the license plate ... was not plainly visible at a distance of sixty feet," as she says was required to establish a violation of G. L. c. 90, § 6. We note, however, that G. L. c. 90, § 7, as appearing in St. 1978, c. 439, § 1, requires all motor vehicles to "be equipped with ... a white light so arranged as to illuminate and not obscure the rear number plate," which indicates that the lack of a light is itself an infraction regardless of whether the plate is visible from sixty feet. In any event, given our ruling, we need not resolve this question.

      When asked on cross-examination whether he did "anything else about getting the proper IDs," Rucho replied, "I don't believe so, no."

      The judge found that "the three occupants of the [vehicle] ... engaged in no furtive movements" and "were cooperative with [the] police officers and responded to the police officers' questions."


text:
    COMMONWEALTH v. Thomas B. JOHNSON.
    17-P-463
    Appeals Court of Massachusetts.
    Entered: April 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury-waived trial in the District Court, the defendant, Thomas B. Johnson, was convicted of assault and battery. On appeal, he argues that (1) the evidence was insufficient to support the conviction; and (2) the judge erred in allowing the Commonwealth's motion to convert probation service fees to restitution. We affirm.

1. Assault and battery. The defendant claims that the judge erred in denying his motions for a required finding of not guilty. We review to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

The evidence was sufficient to establish the elements of assault and battery. See Commonwealth v. Boyd, 73 Mass. App. Ct. 190, 194 (2008). Not only did the victim testify that he was punched in the ribs, kicked, picked up, thrown to the ground, and struck from behind, but the Commonwealth also presented substantial evidence corroborating this testimony. Moreover, the victim testified that he saw his attacker in the bathroom mirror at the start of the incident, and there was evidence that the victim later identified the defendant as the assailant from a photographic array. Based on this evidence, the judge properly denied the required finding motions. To the extent that there were inconsistencies in the victim's testimony, it was for the fact finder to resolve them. See Commonwealth v. Platt, 440 Mass. 396, 400 (2003).

2. Restitution. The defendant next contends that the judge abused her discretion in allowing the Commonwealth's motion to convert probation service fees to restitution. We disagree.

On June 27, 2016, after trial, the defendant received a sentence that included two years of probation and an order to pay $65 per month in probation fees as a condition of probation. On September 21, 2016, the Commonwealth filed a "Motion to Convert Probation Service Fees to Restitution." The motion sought to convert the defendant's probation fee payments to restitution payments, to help the victim pay for the cost of emergency medical services stemming from the assault and battery. As grounds for the motion, the Commonwealth asserted, inter alia, that the prosecutor had inadvertently failed to seek restitution as a component of sentencing despite the victim's pretrial request, and that the amount sought would "not impose any additional liability upon the defendant or prejudice him in any way." On September 22, 2016, the judge endorsed the motion "[a]llowed if no objection by counsel." On October 21, 2016, the defendant filed an opposition to the motion. On November 22, 2016, the judge held a hearing on the motion at which counsel were present, and allowed the motion that day. The defendant now appeals from the restitution order.

In Commonwealth v. Denehy, the Supreme Judicial Court explained that a judge's power to order restitution is "unquestionable," not limited by statute, and imbued with "significant latitude." 466 Mass. 723, 737 (2014) (quotations omitted). The "scope of restitution is limited to 'loss or damage [that] is causally connected to the offense and bears a significant relationship to the offense.' " Commonwealth v. McIntyre, 436 Mass. 829, 835 (2002), quoting from Glaubius v. State, 688 So. 2d 913, 915 (Fla. 1997). "[W]e look to the underlying facts of the charged offense, not the name of the crime [of which the defendant was convicted, or] to which the defendant entered a plea." McIntyre, supra, quoting from State v. Landrum, 66 Wash. App. 791, 799 (1992). See Commonwealth v. Williams, 57 Mass. App. Ct. 917, 918 (2003) ("[T]he purpose of restitution ... is not only to compensate the victim for his or her economic loss tied to the defendant's conduct, but also to make the defendant pay for the damage he or she caused as a punitive and rehabilitative sanction"). The Commonwealth bears the burden of proving the amount of the loss by a preponderance of the evidence. McIntyre, supra at 834.

In the present case, there is no explicit challenge as to the causal connection between the incident and the amount of restitution ordered. Rather, the defendant contends that by failing to seek restitution at the time of sentencing, the Commonwealth "waived the opportunity to request it." The defendant cites no legal authority for this proposition, and thus the argument does not satisfy Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

The defendant next contends that he did not have an opportunity to be heard and confront witnesses against him. This argument overlooks the fact that the defendant elected not to attend the hearing, at which he could have been heard and challenged the Commonwealth's motion. Moreover, the defendant did not provide a transcript of the motion hearing to this court, and, upon realizing that a copy of the transcript was not contained in the record, did not take advantage of the opportunity provided by the appellate rules to supplement the record. See Mass.R.A.P. 8(c), as amended, 378 Mass. 932 (1979). On the record before us, we cannot say that the defendant was somehow precluded from challenging the Commonwealth's evidence, or whether he even objected to the procedure implemented by the judge at the motion hearing.

The defendant also claims that there was no change in circumstances justifying the allowance of the motion to convert probation fees to restitution. We agree that a material change in circumstances is a prerequisite to adding or modifying "a probation condition that will increase the scope of the original probation conditions." Commonwealth v. Goodwin, 458 Mass. 11, 18 (2010). Here, however, there is no dispute that the amount of restitution, per the judge's order, does not impose any increase in the amount owed by the defendant or in the scope of the original probation conditions. Rather, the judge, who was unaware of the existence of the cost of the victim's medical services at the time of sentencing, merely shifted the ultimate destination of the defendant's required payments. See Commonwealth v. Morales, 70 Mass. App. Ct. 839, 844 (2007) ("Where a judge is asked to modify the conditions of probation, the judge retains the discretion to include additional reasonable restrictions consistent with the underlying basis for the modification, ... so long as the modification of the terms is not 'so drastic' that it amounts to a revision of the terms of the sentence" [quotation omitted] ). Compare Commonwealth v. Selavka, 469 Mass. 502, 511 (2014) (where modification to sentence is "so punitive as to increase significantly the severity of the original probation ... our common-law principles of double jeopardy bar the imposition of what is essentially a new, harsher sentence once the [revision or revocation] period has expired" [quotations omitted] ).

In short, we cannot say that the judge abused her ample discretion in allowing the motion where (1) the amount of restitution did not impose any additional financial obligation on the defendant, and (2) there is nothing in the record before us to show that the hearing was procedurally deficient. See L.L. v. Commonwealth, 470 Mass. 169, 184-185 & n.27 (2014).

Judgment affirmed.

Restitution order affirmed.

      The corroborating evidence included photographs of the victim's injuries and the testimony of a police officer who saw the victim "screaming and writhing in pain" after the incident.

      The defendant's reliance on Commonwealth v. Mazza, 399 Mass. 395, 399 (1987), is unpersuasive. Unlike that case, the victim here identified the defendant as the perpetrator, and the Commonwealth presented substantial evidence that the defendant committed the assault and battery.

      The Commonwealth attached the victim's invoice to the motion to convert probation fees to restitution.

      The defendant's presence at the hearing on the motion to convert probation fees to restitution was waived at the defendant's request.

      The defendant does not argue that the Commonwealth's request constituted an untimely motion to revise or revoke under Mass.R.Crim.P. 29(a), as appearing in 474 Mass. 1503 (2016). In any event, "[o]rdinarily, reasonable additions to the conditions of a defendant's probation do not constitute the revision or revocation of a sentence under rule 29(a)." Selavka, 469 Mass. at 511.

      Our decision is limited to the facts and appellate record in this case. As noted supra, without a transcript and record of the proceedings in the District Court, we will not speculate as to what might have transpired at the motion hearing, what arguments were made and preserved by the parties, or what the full basis was for the judge's order. Cf. Commonwealth v. Woods, 419 Mass. 366, 371-372 (1995).


text:
    Anahid YAPOUDJIAN'S CASE.
    17-P-511
    Appeals Court of Massachusetts.
    Entered: April 17, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The employer's insurer, XL Insurance America (insurer), appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) which, in turn, affirmed the decision of the administrative judge ordering the insurer to pay the employee, Anahid Yapoudjian, temporary and permanent benefits pursuant to G. L. c. 152, § 34. The insurer argues that the administrative judge's decision was arbitrary and capricious, because the causal relationship and ongoing disability findings were unsupported by the evidence, and the judge failed to perform the proper analysis under G. L. c. 152, § 1(7A). The insurer also contends that it was error to allow Yapoudjian to join a claim for ongoing disability without supporting medical documentation. Discerning no error, we affirm.

The administrative judge found that Yapoudjian, a bank teller whose duties included lifting large quantities of coins, first reported transitory back pain in 2011. She received treatment and was nonsymptomatic thereafter for at least two years. In March, 2014, following an incident in which Yapoudjian lifted "several coin rolls from the floor to a wheeled chair and then rolled the chair to a service window," she again experienced back pain. Although Yapoudjian returned to work, her pain increased over the next several months. She left work in July, 2014, received treatment for her pain, and then returned to work in November, 2014. Yapoudjian continued to experience pain, and again left work in January, 2015; she has not since returned. The administrative judge found that Yapoudjian suffered an industrial injury in March, 2014, that caused her to be totally disabled for a closed period between July 12, 2014, and November 3, 2014, and again for the period January 23, 2015, to the present and continuing. The judge ordered the insurer to pay specified compensation for the periods indicated along with necessary medical treatment.

"We review a board's decision regarding workers' compensation benefits under the usual standard for appeal from a final decision of an administrative agency set forth in G. L. c. 30A, § 14(7)...." Wadsworth's Case, 461 Mass. 675, 679 (2012). "The reviewing court inquires 'whether the decision is factually warranted and not '[a]rbitrary or capricious ....' " Dalbec's Case, 69 Mass. App. Ct. 306, 312 n.8 (2007), quoting from Scheffler's Case, 419 Mass. 251, 256 (1994). "A decision is arbitrary and capricious when it lacks any rational explanation that reasonable persons might support." HerculesChem. Co. v. Department of Envtl. Protection, 76 Mass. App. Ct. 639, 643 (2010), quoting from Cambridge v. Civil Serv. Commn., 43 Mass. App. Ct. 300, 303 (1997). "[I]n cases of summary affirmance of a decision of the administrative judge by the reviewing board, the reviewing court is inspecting the findings and reasoning of the administrative judge." Dalbec, supra at 313.

First, whether an accident occurred as Yapoudjian described it is a question of fact. "Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge." Pilon's Case, 69 Mass. App. Ct. 167, 169 (2007). While the evidence here was conflicting, we are satisfied that it adequately supports the administrative judge's findings and conclusions.

The judge specifically found Yapoudjian's testimony credible and persuasive and he adopted that testimony on all material points. The treatment notes from Doctors Kurz and Gates largely corroborated Yapoudjian's testimony and Dr. Kurz specifically opined "with reasonable medical certainty" that the industrial accident of March, 2014, was "the precipitating cause of" Yapoudjian's pain. While, as the judge noted, Dr. Kurz did not specifically opine that Yapoudjian was "disabled," the doctor stated that "certainly [Yapoudjian's] pain restricts her from being able to carry out her previous work functions." The judge's subsidiary findings and conclusions pertaining to Yapoudjian's disability, based on her "testimony and on the administrative judge's observation of [Yapoudjian] in the courtroom and on the witness stand, in conjunction with [Dr. Kurz's treatment notes and] expert medical opinion," cannot be deemed erroneous. Greci v. Visiting Nurses Assn., 12 Mass. Workers' Comp. Rep. 462, 465 (1998). It was within the judge's discretion to discount Dr. Pennell's contrary opinion. See Coggin v. Massachusetts Parole Bd., 42 Mass. App. Ct. 584, 589 (1997).

Second, because the insurer raised an affirmative defense under G. L. c. 152, § 1(7A), it was the insurer's burden to produce evidence that Yapoudjian's "claimed injury may be owing to a resultant condition arising from a combination of injuries, the claimed injury and a prior noncompensable injury." MacDonald's Case, 73 Mass. App. Ct. 657, 659 (2009). The administrative judge held that the insurer did not carry its burden. We agree. While Dr. Pennell opined that Yapoudjian's "L5-S1 disc herniation had started long before March 31, 2014," Dr. Pennell did not suggest that the herniation relates or otherwise contributed or combined to contribute in any manner to her present condition. On the contrary, Dr. Pennell specifically opined that there was "no causal relationship between the above diagnosis and her occupation as a teller or any incident or event at work on March 31, 2014." Moreover, while Dr. Pennell opined that Yapoudjian "does have preexisting conditions contributing to her low back condition," the doctor notably did not opine that these conditions either were noncompensable or otherwise causally unrelated to Yapoudjian's working conditions. In any event, and assuming the insurer minimally carried its burden to demonstrate an existing, noncompensable injury, we again observe that, in light of the other evidence presented, it was within the administrative judge's discretion to discount Dr. Pennell's opinion. See Coggin, supra.

Third, the administrative judge did not err by allowing Yapoudjian to join, after the initial conference but before hearing on the insurer's appeal, an additional claim for benefits for the period from and after January, 2015. Such an amendment is governed by 452 Code Mass. Regs. § 1.22(1) (2017), which provides, as relevant here, that a motion to amend "shall be allowed ... unless the amendment would unduly prejudice the opposing party." When Yapoudjian moved to join the additional claim she already had produced medical evidence supporting her initial claim; the new claim arose only after the initial conference (after which Yapoudjian again was forced to leave work), and the additional claim was based on the same alleged March, 2014, industrial injury. The insurer has not identified any prejudice the joinder may have occasioned.

Indeed, the evidentiary record remained open, the insurer was allowed to conduct additional discovery, and the judge allowed the insurer to introduce such additional medical evidence as it wished. We thus are unable to say, on this record, that the administrative judge's decision was arbitrary, capricious, or otherwise contrary to law. See G. L. c. 30A, § 14(7). See also Chamberlain v. DeMoulas Mkts., 14 Mass. Workers' Comp. Rep. 187, 193 (2000). Cf., e.g., Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 549 (1987) ("Although leave to amend is within the discretion of the judge, leave should be granted unless there appears some good reason for denying the motion").

Finally, we allow Yapoudjian's specific request, under G. L. c. 152, § 12A, for her reasonable attorney's fees and costs on appeal. Thus, we direct counsel to file with the clerk of this court within fourteen days a detailed and supported submission of the attorney's fees and costs sought. The insurer shall have an additional fourteen days to respond thereto. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).

Decision of reviewing board affirmed.

      452 Code Mass. Regs. § 1.07 (2017), cited by the insurer, sets forth the requirements applicable to original claims.


text:
    COMMONWEALTH v. Thomas C. CICCOLINI.
    17-P-253
    Appeals Court of Massachusetts.
    Entered: April 17, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant was convicted of assault and battery on a police officer, and resisting arrest. He appeals and his sole argument is that there was insufficient evidence to support his convictions because the Commonwealth failed to prove beyond a reasonable doubt that he was not justified in using self-defense in response to excessive force from the police. We affirm.

"In reviewing evidentiary sufficiency, the Latimore standard governs, that is, 'whether the evidence, in its light most favorable to the Commonwealth, ... is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged.' " Commonwealth v. Hanson, 79 Mass. App. Ct. 233, 234 (2011), quoting from Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).

"An intentional assault and battery is 'the intentional and unjustified use of force upon the person of another, however slight.' " Commonwealth v. Porro, 458 Mass. 526, 529 (2010), quoting from Commonwealth v. McCan, 277 Mass. 199, 203 (1931). "In addition to the elements required for assault and battery, conviction of [assault and battery on a police officer] requires proof 'that the offense be committed on a "public employee who was engaged in the performance of his duty at the time" of the assault and battery.' " Commonwealth v. Colon, 81 Mass. App. Ct. 8, 22 (2011), quoting from Commonwealth v. Correia, 50 Mass. App. Ct. 455, 457 (2000). "The Commonwealth must also prove that the defendant knew his victim was a police officer." Colon, supra.

Based on the evidence, the jury reasonably could have found the following facts. Two witnesses telephoned the police after they observed the defendant and his girl friend arguing on the sidewalk near their residence. One witness heard loud arguing and saw the defendant repeatedly prevent the woman from walking away; that witness was concerned "[t]hat there was going to be a physical altercation." The other witness saw the defendant strike the woman. After that witness sounded her car horn to get attention, the defendant and the woman "ran around the corner to the side of the house."

Shortly thereafter, Fitchburg police Officers Pepple and Rouleau, both in "full duty uniform," arrived at the house. An elderly female, who was gardening in the yard, directed the officers to the basement door on the right side of the house. At that basement door, Rouleau opened the outside screen door to knock on the inside wooden door, identifying himself as a Fitchburg police officer; no one answered. He knocked a second time and the defendant answered the door, looking "red-faced. Very angry." There were fresh-looking bloody scratches on the defendant's neck, and he yelled, "What?" Rouleau asked where the female was who had been involved in the altercation and the defendant responded that it was none of the officer's business. The defendant then attempted to shut the door in Rouleau's face while Rouleau was "in the door frame, threshold"; however, the officer was able to stop the door from closing. As Rouleau started "pushing the door back on" the defendant, and informed him that the officers needed to check on the well-being of the female, the defendant pushed Rouleau in the chest, forcing the officer backwards. Rouleau immediately told the defendant he was under arrest, and instructed him to put his hands behind his back. Rouleau then stepped through the doorway into the apartment in an attempt to handcuff the defendant. On these facts, we are satisfied there was sufficient evidence to establish that the defendant intentionally, without the officer's consent, pushed Rouleau, whom he knew to be a Fitchburg police officer.

Next, "[i]n assessing the sufficiency of the evidence to support a charge of resisting arrest, ... the proper focus is whether, at the time of the interaction, the officer, acting under color of authority, arrested the defendant, and whether the defendant resisted that arrest with force or violence or a means creating a substantial risk of causing bodily injury to the officer." Commonwealth v. Lender, 66 Mass. App. Ct. 303, 305 (2006).

There was ample evidence here to support the defendant's conviction of resisting arrest. As the officers testified at trial, while they were attempting to handcuff the defendant, "a big fight and struggle" ensued because the defendant would not comply with the officers' repeated requests to put his hands behind his back. As the officers were attempting to place the handcuffs on his wrists, the defendant was holding onto the door handle with one hand and "flailing" his other arm toward the wall where various yard equipment was located. He was yelling angrily and telling the officers he was going to "beat the shit" out of them.

Officer Pepple indicated that she was going to spray the defendant with pepper spray, causing the defendant to turn toward Rouleau. At that point, Rouleau gave the defendant a "quick little jab to his nose" with a closed fist, causing the defendant's nose to bleed; nonetheless, the defendant continued to struggle. The defendant also pushed Pepple in the chest and against the door, and spit on her with bloody saliva. Rouleau, with his police baton, next gave the defendant a quick jab to the shoulder area, allowing Pepple to get one handcuff on the defendant. In trying to get the defendant's other arm under control, Rouleau took the defendant by the head and neck area, and brought him to the ground where Pepple was then able to complete the handcuffing process despite the defendant "tensing" and holding his fists out.

The defendant finally stopped resisting after he was handcuffed and Pepple had pushed him against the water heater, telling him to "knock it off," after he tried to "drag [her]" after he was in custody. Rouleau, at that point, was looking for an alternative route out of the basement because, during the struggle, the door they had entered had "closed and locked." Rouleau also suffered an injury to his fingernail.

At trial, the defendant did not argue that he had acted in self-defense; his defense, as the judge described it at the charge conference was, instead, "I didn't do this." Counsel agreed with that characterization at the time. Nonetheless, the judge instructed the jury on the issue of excessive force and told the jurors that, "If there is some evidence that the police used unreasonable or excessive force, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense." He then gave the standard self-defense instruction. At trial, defense counsel told the judge that he was satisfied with the jury instructions, and counsel reiterated at oral argument before this court that there was no challenge to the jury instructions. The question whether the police officers used excessive force in arresting the defendant was one for the jurors; to the extent that they found the defendant guilty on these two counts, it is clear that they disbelieved the defendant and his girl friend and rejected that defense. The defendant's attempt to relitigate the issue in this court simply fails.

Based on the evidence presented, and evaluating it in the light most favorable to the Commonwealth, the jurors were permitted to find beyond a reasonable doubt that the defendant committed an assault and battery on Rouleau, and that the police did not use excessive force in making an arrest that the defendant resisted. See Commonwealth v. Dubois, 451 Mass. 20, 28 (2008) ("The weight and credibility of the evidence is the province of the jury").

Judgments affirmed.

      The defendant was acquitted of a second charge of assault and battery, on another police officer (count 1); assault and battery on a family or household member (count 2); and intimidating a witness (count 6). Count 5, an assault charge, was dismissed on the defendant's motion for a required finding of not guilty.

      When Rouleau first opened the screen door to knock, the "slightly ajar" inside door was "slammed shut."

      The defendant's warrantless entry argument fails, as the evidence reasonably established that Rouleau did not enter the defendant's apartment until after the defendant had assaulted him while standing in the "door frame, threshold." Moreover, any argument on constitutional grounds should have been made in a motion to suppress evidence of what occurred after the alleged "unlawful entry." There is no indication in this record that any motion to suppress was filed.

      The area in the basement in which this altercation took place was "really dark" and there was yard equipment hanging on the wall and lying on the floor.

      At trial, both the defendant and his girl friend provided contradicting testimony. According to them, the defendant never raised a hand against the officers.

      A picture of Rouleau's injured fingernail was admitted as an exhibit at trial.


text:
    ADOPTION OF NINA.
    17-P-1220
    Appeals Court of Massachusetts.
    Entered: April 27, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The mother appeals the termination of her parental rights with respect to the child. We affirm.

Background. The child was born in 2006. In January, 2015, the Department of Children and Families (department) assumed emergency custody of the child and filed a petition alleging that the child was in need of care and protection. In September, 2015, the mother entered into a written stipulation waiving her rights to a hearing on the merits of the petition. A Juvenile Court judge approved the stipulation, found the mother unfit, and committed the child to the custody of the department. In October, 2015, the department filed a notice of intent to seek termination of parental rights and to dispense with the need for parental consent for adoption. A second Juvenile Court judge, after a trial, terminated the mother's parental rights, and approved the department's adoption plan for the child. The child did not return to the mother's care at any point following her removal. The child has lived in a preadoptive home since January, 2017.

Discussion. The mother argues that the judge erroneously terminated the mother's parental rights because the child wished to be adopted, and contends that there was insufficient evidence to conclude that the mother was unfit. We disagree.

A. Child's testimony. As an initial matter, the mother argues that the judge impermissibly allowed the child to testify in camera, and that the judge gave undue weight to the child's testimony. The child testified in the absence of the mother, mother's counsel, the pro se father, child's counsel, and counsel for the department.

"Because of the delicacy of cases involving interests of children which may be adverse to that of their parents, a trial judge is not restricted to the ordinary modes of trial, but may direct that the children be brought before [the judge], and may examine them privately. ..." Adoption of Arthur, 34 Mass. App. Ct. 914, 915 (1993) (quotation omitted). Assuming without deciding that this issue was properly preserved, the judge did not abuse her discretion in allowing the child to testify with accommodations. While it is "far preferable" for a judge to make explicit findings regarding the need for accommodations, given the child's history, it was implicit that the judge determined that the child would suffer trauma if she testified with the parties and counsel present. Adoption of Roni, 56 Mass. App. Ct. 52, 56-57 (2002). Prior to the child testifying, there was evidence of the child's history of trauma and the clinical support that she received, including that she received a trauma assessment over the course of several weeks and that the child and social worker developed a code system at the child's request to communicate the child's discomfort, if any, during visits with the mother.

Additionally, the structure of the child's testimony was permissible. Before the child testified, the mother was given the opportunity to propose questions for the judge to ask of the child. The child testified for approximately twenty minutes. After the child testified, the judge provided an audio recording of the child's testimony to the parties. The record does not indicate that the mother requested a further opportunity to propose additional questions for the child in light of the child's testimony. The in camera testimony did not impede the mother's opportunity to "effectively ... rebut adverse allegations concerning child-rearing capabilities." Adoption of Roni, 56 Mass. App. Ct. at 55, quoting from Adoption of Mary, 414 Mass. 705, 710 (1993). Further, the mother has shown no prejudice from the manner in which the child testified or the substance of the child's testimony. The judge's conclusions of law indicate that the judge considered the child's testimony in context of the other evidence presented at trial. While the child's opinion was not determinative, it was within the judge's discretion to consider the child's desire to be adopted. Adoption of Arthur, 34 Mass. App. Ct. at 915.

B. Unfitness. A judge must find, by clear and convincing evidence, that the parent is currently unfit to care for the child and that termination is in the child's best interests. See Adoption of Nancy, 443 Mass. 512, 514 (2005). "Generally, no one factor is determinative and the judge should weigh all the evidence" (footnote omitted). Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 (1987). "We give substantial deference to [the] judge's decision ... and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, 459 Mass. 53, 59 (2011).

The mother cared for the child during the first eight years of the child's life until the child was removed from the mother's care following an incident in a hospital waiting room where the child was reportedly left unattended. The department took emergency custody of the child because of the mother's aggressive behavior when confronted by hospital and department staff and because the mother was unable to make decisions regarding the child's care given the mother's intoxication. Following the child's removal, the mother demonstrated instability in several areas of her life and there was clear and convincing evidence of the mother's unfitness at the time of trial.

The mother's lack of stable employment and housing both factored into the judge's determination of her unfitness. The mother lacked a stable source of income to care for the child, having worked "[i]n the past year [before 2017] ... approximately fifteen days in total." She testified that she intended to apply for temporary disability from Social Security based on an injury sustained in 2015, but had not yet filed a claim. The mother also failed to maintain stable housing and moved between living with relatives, friends, and a "sober house," and reported that for a period that she was living on beaches and in parks. The mother testified that, moving forward, she intended to live with friends or seek shelter at a women's shelter. The judge permissibly considered these patterns of instability as factors that would negatively impact the child. See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 136 (2004).

The mother also struggled with her mental health and substance use. During the pendency of the department's involvement with the child, the mother demonstrated aggressive behaviors, including outbursts directed at or in front of the child that led to the suspension of visits. Although the mother engaged in some therapy and was scheduled for an anger management and impulse control evaluation, there was no further information conveyed to the judge regarding her completion of this evaluation or her efforts to remedy these shortcomings. Similarly, in February, 2016, the mother discontinued substance use treatment despite referrals from the department and knowledge that treatment was required in the service plan. Later that year, the mother was "sectioned" for nineteen days following an altercation with the maternal grandmother, who then sought to have the mother committed for involuntary drug treatment. To the extent that the mother engaged in services to address these issues, she did not benefit from them. In light of the child's significant emotional and behavioral special needs, the patterns of behaviors support the conclusion that the mother was unfit and that her unfitness was likely to continue into the future. See Adoption of Ilona, 459 Mass. at 60 ("Because childhood is fleeting, a parent's unfitness is not temporary if it is reasonably likely to continue for a prolonged or indeterminate period").

Lastly, while the mother argues that the judge failed to adequately consider the testimony of certain witnesses, we defer to the judge's credibility assessments and the weight that she placed on the evidence. See Adoption of Quentin, 424 Mass. 882, 886 n.3 (1997).

Decree affirmed.

      The father's rights were also terminated, and the maternal grandmother's petition for permanent guardianship was denied. Neither the father nor the maternal grandmother are parties to this appeal.

      The department filed a short order motion during trial asking that the child be allowed to testify and that several accommodations be made for the child, including that the child testify in the afternoon, be allowed to enter the court house through a side door, and not pass through security. The department also requested that the child not testify in the presence of the parties and counsel, and that counsel submit questions in advance to be asked directly by the judge.

      The child's counsel objected to the child testifying, arguing that testifying would be traumatic for the child. The judge stated that accommodations would be made "[s]o that there is no, we will minimize any trauma to this child." The judge allowed the child to testify as "there's been no evidence shown that there is, that this is a definitive trauma to the child." In context, we understand the judge to mean that there is no evidence that testifying itself would be traumatic to the child, and not that there was no evidence of trauma requiring accommodations.

      After the judge approved the accommodations, but before the child testified, the clinical social worker who conducted the trauma assessment testified. She testified that she evaluated the child from September, 2015, to January, 2016. The social worker opined that the child "suffered from trauma based on her recall of experiences and her perception of the impact it had on her on those experiences," and she initially suggested that the mother and child engage in repair work. The clinical social worker concluded that the child had posttraumatic stress disorder, anxiety, and issues with attachment regulation and competency. The child's pediatric neuropsychologist diagnosed the child with attention deficit disorder, posttraumatic stress disorder, and anxiety.

      The judge allowed counsel the opportunity to listen to the child's testimony immediately after the child testified. However, the quality of the recording was poor and so the judge resumed trial and made arrangements for the parties to receive copies of the audio. The trial transcript does not indicate how much, if any, of the recording counsel listened to before trial resumed. The mother's counsel did not object to resuming trial before the parties could listen to the audio. Later, the mother's counsel also did not object to proceeding with closing arguments even though the mother had not yet finished listening to the entire recording. The mother's counsel did not indicate that counsel herself did not listen to the audio, and mother's counsel referenced the child's testimony in her closing argument.

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

      To the extent that we do not address the mother's other contentions, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. Wendy LAPORTE.
    17-P-33
    Appeals Court of Massachusetts.
    Entered: April 27, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant was convicted of unarmed robbery, G. L. c. 265, § 19(b ), and assault and battery on a disabled person, G. L. c. 265, § 13K (a 1/2). On appeal, the defendant claims error in the denial of her motions for required findings of not guilty. Specifically, the defendant argues that no rational trier of fact could have found the evidence sufficient to establish beyond a reasonable doubt that she had the intent to rob the victim, or that she knew the victim was disabled. The defendant also contends that the convictions were duplicative. We affirm.

Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). At the time of the offense, the victim was forty-nine years old and suffered from cerebral palsy. As a result of her disability, she walked with a limp and had difficulty speaking. On February 26, 2014, the victim went to the local Shell convenience store and gas station, as was her custom, to "play the scratch tickets." She won $400 on a ticket and was so happy she gave the manager a "high-five."

The defendant, who frequented the store with her boy friend, was waiting in line behind the victim. She stared at the money as the store manager counted out $400 and gave it to the victim. The defendant immediately left the store without making a purchase and walked to her white sport utility vehicle (SUV), which was parked at the first gasoline pump. Shortly thereafter, the defendant reentered the store and the defendant's boy friend, Sayed McKenzie, drove the SUV away from the pump. The defendant then exited the store again. At one point, the store manager observed McKenzie pacing back and forth in front of the store.

Concerned by the conduct of the defendant and McKenzie, the manager told the victim to wait in the store for a moment while he addressed other customers. Eventually, the store manager walked the victim out to her mother who was waiting in her vehicle to give the victim a ride home. Soon after they departed, the defendant's SUV sped into the gas station and immediately exited in the same direction as the victim's vehicle.

Shortly thereafter, as the victim approached the stairs to her apartment, McKenzie ran toward her, knocked her onto an ice bank, and threatened, "If you don't give me the money, I will shoot you." McKenzie then reached into the victim's pocket, took the $400, and fled on foot. Meanwhile, the defendant drove the SUV around the apartment complex and exited with a right turn. McKenzie ran toward the SUV as it turned right out of the complex.

A review of video recordings from the surveillance camera at the Shell station quickly identified the defendant and McKenzie as suspects. They were arrested together the following day. In a police interview, the defendant denied that she had observed the victim win $400 at the Shell station and denied that she was aware that McKenzie had robbed the victim.

The defendant testified at trial and admitted that she had lied to the police because she was afraid of McKenzie, who had been abusing her throughout their fifteen-month relationship. She admitted that she had been at the Shell station, had witnessed the transaction with "piles of money" on the counter, and had told McKenzie about the money. She maintained, however, that she knew nothing about the robbery. The defendant explained that she drove to the apartment complex where the victim lived only because she had been directed to do so by McKenzie, whom she feared. She dropped McKenzie off and was departing the complex when she heard him yelling for her to stop as he ran behind her SUV. She stopped, he entered the SUV, and they drove together to a Red Lobster restaurant in Connecticut.

Discussion. 1. Sufficiency. When a defendant moves for a required finding of not guilty at the close of the Commonwealth's case, we consider the evidence that had been introduced to determine "whether the Commonwealth presented sufficient evidence of the defendant's guilt to submit the case to the jury." Commonwealth v. Dustin, 476 Mass. 1003, 1003 (2016), quoting from Commonwealth v. Platt, 440 Mass. 396, 400 (2003). The evidence is sufficient if, "viewing the evidence in a light most favorable to the Commonwealth, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'[ ]" Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120 (2010), quoting from Latimore, 378 Mass. at 677. Because the Commonwealth's theory was that the defendant acted in a joint venture with McKenzie, the Commonwealth was required to prove that (1) the defendant participated in the commission of the offenses, (2) that she did so knowingly, and (3) that she shared the required criminal intent. See Commonwealth v. Gonzalez, 475 Mass. 396, 406 (2016).

a. Unarmed robbery. A person commits the offense of unarmed robbery in violation of G. L. c. 265, § 19(b ), when he takes money from another by force and violence. See Commonwealth v. Cruzado, 73 Mass. App. Ct. 803, 806 (2009). The evidence that McKenzie pushed the victim to the ground and took her $400 was sufficient to prove that he committed the crime of unarmed robbery. The defendant does not claim otherwise. Rather, she contends that the evidence was insufficient to prove that she knowingly participated in the commission of that offense. See Gonzalez, supra. We disagree.

The jury heard that the defendant was in a position to witness the store clerk hand the victim $400. The store surveillance video, which we have reviewed, reveals that after making that observation, the defendant abruptly left the store, went to her SUV, and then returned. The jury could reasonably infer from that sequence of events that she left the store to report the victim's receipt of the $400 to McKenzie. After the defendant exited the store a second time, she drove her SUV from the gas station at a high rate of speed and followed the victim and her mother to the apartment complex where they lived. The defendant stopped to let McKenzie out of the SUV and, moments later, McKenzie attacked the victim and robbed her of the $400. Later, McKenzie reentered the defendant's SUV and they drove out of the complex together.

From these facts the jury could reasonably infer that the defendant facilitated the robbery by identifying the victim as a robbery target, driving McKenzie to the scene of the crime, and acting as his getaway driver. The defendant's testimony that she acted only out of fear and was unaware of the robbery did not impact the sufficiency of this evidence, as the jury were not required to accept her testimony. See Commonwealth v. Morgan, 449 Mass. 343, 352 (2007). Thus, there was ample evidence from which the jury could rationally conclude beyond a reasonable doubt that the defendant knowingly and intentionally assisted McKenzie in committing the offense of unarmed robbery.

b. Assault and battery on a disabled person. An "intentional and unjustified use of force[,] ... however slight[,]" upon a person with a disability violates G. L. c. 265, § 13K (a 1/2). Commonwealth v. Porro, 458 Mass. 526, 529, quoting from Commonwealth v. McCan, 277 Mass. 199, 203 (1931). The defendant does not dispute the sufficiency of evidence that McKenzie committed an assault and battery on the victim. She claims that even if the evidence was sufficient to establish her role as a joint venturer in the assault, it was not sufficient to prove that she knew the victim was disabled. Because this argument is raised for the first time on appeal, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. St. Louis, 473 Mass. 350, 355 n.8 (2015).

The language of the statute is unambiguous. Nothing in it requires the defendant to know of the victim's disability to be guilty of the offense, nor has any Massachusetts case held that scienter is a required element of assault and battery on a disabled person. There was no error, much less a substantial risk of a miscarriage of justice.

2. Duplicative convictions. The defendant contends that if her conviction of unarmed robbery is affirmed, the conviction of assault and battery on a disabled person should be reversed, because the latter is a lesser included offense of unarmed robbery. We disagree. See Commonwealth v. Kegler, 65 Mass. App. Ct. 907, 909 (2006) ("Assault and battery is not a lesser included offense of unarmed robbery, as each requires an element that the other does not").

Judgments affirmed.

      The record also reflects that the victim wore leg braces, but they were not visible to the defendant.

      "Whoever commits an assault and battery upon ... a person with a disability shall be punished ...." G. L. c. 265, § 13K (a 1/2), inserted by St. 2004, c. 501, § 7. A "person with a disability" is defined as "a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual's ability to provide for his or her own care or protection." G. L. c. 265, § 13K(a ), inserted by St. 2004, c. 501, § 6.


text:
    COMMONWEALTH v. Franklin ABERNATHY.
    17-P-904
    Appeals Court of Massachusetts.
    Entered: April 26, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a 2008 jury trial in the Superior Court, the defendant was convicted of two counts of breaking and entering a building with the intent to commit a felony, G. L. c. 266, § 18 ; and one count of possession of burglarious instruments, G. L. c. 266, § 49. As to each offense, the Commonwealth sought sentencing enhancement, alleging that the defendant was a habitual offender. See G. L. c. 279, § 25. At a bench trial following convictions of the underlying offenses, the Commonwealth introduced evidence of four prior convictions for which the defendant had been sentenced to three or more years in State prison. Based on this evidence, the judge found that the defendant was a habitual offender within the meaning of G. L. c. 279, § 25, and sentenced him to the statutory maximum on each of the three offenses.

In May, 2017, the defendant, acting pro se, filed a motion to correct his sentence, claiming that he could not be sentenced as a habitual offender on multiple counts. The judge denied the motion without a hearing, and this appeal followed.

We review the defendant's sentence only to determine whether it was lawful, as we "have no general power to review the severity or leniency of an otherwise lawful sentence which is within the limits permitted by statute." Commonwealth v. Hogan, 17 Mass. App. Ct. 186, 187 (1983). In this case, where the defendant was sentenced to the maximum term of imprisonment on each of three separate offenses pursuant to the habitual offender statute, we conclude that the sentences were lawful.

In pertinent part, G. L. c. 279, § 25, provided that

"[w]hoever has been twice convicted of crime and sentenced and committed to prison ... for terms of not less than three years each ... shall, upon conviction of a felony, be considered a habitual criminal and be punished by imprisonment in the [S]tate prison for the maximum term provided by law as a penalty for the felony for which he is then to be sentenced."

Here, the evidence established that, at the time of his three felony convictions in 2008, the defendant had previously been convicted four times and had, on each offense, been committed to State prison for a term of three years or more. The defendant does not claim otherwise. Rather, he argues that under Commonwealth v. Richardson, 469 Mass. 248 (2014), it was error to impose a sentence enhancement on each offense. We disagree.

The defendant's reliance on Richardson is misplaced. There, the defendant was convicted of unlawful possession of a single firearm. Id. at 251. The Commonwealth sought enhancement of the sentence under two different statutes, alleging that the defendant qualified as both a repeat offender and an armed career criminal. The Supreme Judicial Court concluded that the judge could not enhance a sentence for a single conviction under both sentence enhancement statutes. Id. at 254. Specifically, the court stated that "unless the Legislature has explicitly declared its intent to permit multiple sentencing enhancements, a defendant may be sentenced under only one sentencing enhancement statute." Id. at 249. The circumstances in this case are different. The defendant was convicted of three separate offenses, see Commonwealth v. Abernathy, 85 Mass. App. Ct. 1117 (2014), and the Commonwealth sought sentence enhancement as to each offense under a single habitual offender statute. Richardson is therefore inapposite.

It is well settled that a defendant can be sentenced as a habitual offender on multiple counts. See Commonwealth v. Perry, 65 Mass. App. Ct. 624, 625 (2006) (affirming judgments regarding convictions of armed burglary, armed assault with intent to murder, and assault and battery by means of a dangerous weapon subject to habitual offender enhancements). Once the judge found that the defendant was a habitual offender, she was required to sentence him to the maximum term of imprisonment for each felony conviction under the unambiguous language of G. L. c. 279, § 25. Whether the sentences were to be served concurrently or consecutively was within the judge's discretion. See Commonwealth v. Lucret, 58 Mass. App. Ct. 624, 628 (2003).

Order denying motion to correct sentence and release from restraint affirmed.

      Panels of this court have previously affirmed the judgments and the orders denying the defendant's several motions for new trial. See Commonwealth v. Abernathy, 85 Mass. App. Ct. 1117 (2014) ; Commonwealth v. Abernathy, 91 Mass. App. Ct. 1119 (2017).

      The defendant waived his right to a jury trial on his status as a habitual offender.

      The defendant was sentenced to ten years in State prison for the first conviction of breaking and entering, to run concurrent with a ten-year term for possession of burglarious instruments. See G. L. c. 266, §§ 18, 49 (both providing for a maximum punishment of ten years in State prison). For the second breaking and entering conviction, the defendant was sentenced to a term of ten years in State prison, from and after the sentences on the other two convictions.

      The Legislature amended § 25 in 2012. See St. 2012, c. 192, § 47. This was the first such amendment since the compilation of the General Laws in 1932. We cite to the version of the statute in effect at the time of the defendant's conviction and sentencing in 2008, quoting the language in effect between 1932 and the 2012 amendment.