author: NEYMAN, J.

text:
    COMMONWEALTH v. Steven SUDLER.
    No. 17-P-442
    Appeals Court of Massachusetts, Suffolk.
    Argued May 8, 2018. Decided September 28, 2018.
    Max Bauer, Boston, for the defendant.
    Nicholas Brandt, Assistant District Attorney (Ryan T. Mingo, Assistant District Attorney, also present) for the Commonwealth.
    Present: Sullivan, Neyman, & Englander, JJ.
   NEYMAN, J.

Following a jury trial in the Superior Court, the defendant, Steven Sudler, was convicted of battery with intent to intimidate causing bodily injury pursuant to G. L. c. 265, § 39 (b ), and a civil rights violation causing injury pursuant to G. L. c. 265, § 37. The central issue on appeal is whether the Commonwealth presented sufficient evidence that the injury suffered by the victim -- two cut fingers --constituted "bodily injury" within the meaning of § 39 (b ). We conclude that the evidence was insufficient to support the defendant's conviction under § 39 (b ) because the Commonwealth did not prove "substantial impairment of the physical condition" as required by the statute. As the Commonwealth presented abundant evidence to prove the lesser included offense of assault or battery with intent to intimidate under G. L. c. 265, § 39 (a ), we vacate the judgment on the charge of battery with intent to intimidate causing bodily injury and remand the matter for resentencing on the lesser included offense. We also conclude that the judge did not err in allowing the Commonwealth to exercise certain peremptory challenges to prospective jurors and that the defendant's argument to the contrary is unavailing.

Background. We summarize the evidence, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). On the evening of August 3, 2014, the victim ventured toward Andrew subway station (station) in the South Boston section of Boston to meet a friend. On the way to the station, he made a telephone call to another friend, Lydia Cottrell. As he joked with Cottrell, he heard a vehicle door slam, heard someone call him "faggot," and turned to see the defendant and the codefendant talking to him. The defendant continued to taunt the victim by calling him "faggot" and "saying a lot of stuff." As the defendant and the codefendant walked toward him, the victim noticed that the defendant held a knife in his hand, "by his side of his hip." The victim pulled out his own knife, an argument ensued, and the defendant "took a swing" at the victim. The victim "jumped back" and "took a swing back at [the defendant]." The parties exchanged words, and the defendant said, among other things, "I hate you South Boston niggers."

The parties separated, and as the victim walked to the station he noticed "red dripping." He thought that the defendant had "cut the bottle" that the victim had been holding, and that the bottle "was leaking." The victim testified that he "didn't even notice that [he] got cut," but as he tried to shake his hand off, he then "noticed that [he] had a wound and it was just continuing dripping, and [he] was just losing a lot of blood." The victim subsequently saw that two fingers of his hand had been cut. One cut was located on the victim's left ring finger, which, according to his testimony, was "sliced from here to there ... [f]rom nearly the top to the joint." The other cut was to the middle finger and went "from this side near the joint from the middle to the end, the corner."

The defendant subsequently entered the station and again called the victim a "faggot." The two exchanged words again, and the defendant "launched" toward the victim. The victim leaned back and then stabbed the defendant in the shoulder. At some point, the victim had a further confrontation with a woman later identified as Latoya Brown, whom he had seen earlier with the defendants. After Brown grabbed some of the victim's belongings, he chased her, caught up to her, and stabbed her on the shoulder during an ensuing scuffle.

Police officers eventually arrived at the scene. Emergency medical services (EMS) later tended to the victim. The victim was upset because EMS did not offer him antibiotics or any other services. "All they did was basically [give him] a Band Aid. That was basically it."

The victim's testimony was corroborated by various witnesses and physical evidence. Cottrell testified that during her telephone conversation with the victim, she heard "people arguing, and people throwing words at each other"; heard a man "saying faggot over and over"; and heard the victim say, "[O]uch, he cut me." A police officer recovered a knife from the defendant's pocket at the scene, and testified that it had blood on it. Surveillance video recordings depicting portions of the incident were also played for the jury.

The defense at trial centered on the victim's alleged lack of credibility and the Commonwealth's inability to prove its case beyond a reasonable doubt. In support of the defense, Brown testified and painted the victim as the aggressor in the encounter.

Discussion. 1. Bodily injury. The defendant contends that the evidence was insufficient to prove "bodily injury" as defined under G. L. c. 265, § 39 (b ). 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. at 677, 393 N.E.2d 370, quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

" General Laws c. 265, § 39, criminalizes a particular kind of unlawful conduct -- the assault or battery of an individual arising from the perpetrator's specific intent to intimidate such person because of that person's membership in a protected group." Commonwealth v. Kelly, 470 Mass. 682, 689, 25 N.E.3d 288 (2015). Section 39 is sometimes referred to as a "hate crime" statute. Id. at 686, 25 N.E.3d 288. Section 39 (b ) of the statute elevates the offense to a felony when the battery "results in bodily injury."

"Bodily injury" is defined in G. L. c. 265, § 39 (b ), as "substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin." Here, the victim did not suffer any of the nonexclusive, enumerated forms of bodily injury contained in the statute. In other words, there was no evidence of any burn, fracture, hematoma, or injury to any internal organ, and the Commonwealth does not contend otherwise. Accordingly, our analysis centers on whether the injury to the victim's fingers constituted "substantial impairment of the physical condition." Id.

We start with the plain language of the statute, which we construe according to its "common and approved usage." Commonwealth v. Scott, 464 Mass. 355, 358, 982 N.E.2d 1166 (2013), quoting Opinion of the Justices, 313 Mass. 779, 782, 47 N.E.2d 260 (1943). However, "[t]echnical terms or those that have acquired a particular meaning within the law should be read in a manner that is consistent with that meaning." Scott, supra.

Although we have not previously analyzed the meaning of "substantial impairment of the physical condition" in the context of G. L. c. 265, § 39 (b ), we recently explained the meaning of that term in Commonwealth v. Ryan, 93 Mass. App. Ct. 486, 105 N.E.3d 1228 (2018). There, the defendant claimed that the Commonwealth failed to prove that the victim suffered a "bodily injury" within the meaning of G. L. c. 265, § 13K. Ryan, supra at 487, 105 N.E.3d 1228. Section 13K proscribes assault and battery on an elderly person or a person with a disability, and provides enhanced penalties for assault and battery causing "bodily injury." The definition of "bodily injury" in § 13K and the definition in § 39 (b ), enacted into law less than one year apart, are the same. Compare St. 1995, c. 297, § 4 (defining "bodily injury" in § 13K [a ] ), with St. 1996, c. 163, § 2 (defining "bodily injury" in § 39 [b ] ). Thus, Ryan provides helpful guidance. See Commonwealth v. Wynton W., 459 Mass. 745, 747, 947 N.E.2d 561 (2011), quoting Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 188-189, 248 N.E.2d 500 (1969) ("Where the Legislature uses the same words in several sections which concern the same subject matter, the words 'must be presumed to have been used with the same meaning in each section' ").

"Impairment" as used in G. L. c. 265, § 39 (b ), "derives from the medical context," and "we construe 'impairment of the physical condition' to mean damage to any body part that 'compromise[s] its ability to perform its function in the victim's body.' " Ryan, 93 Mass. App. Ct. at 489, 105 N.E.3d 1228, quoting Scott, 464 Mass. at 359, 982 N.E.2d 1166. The degree of impairment under § 39 (b ) must be "substantial," which means "considerable in quantity" or "significantly great." Ryan, supra, quoting Merriam-Webster's Collegiate Dictionary 1245 (11th ed. 2005). Thus, to establish substantial impairment of the physical condition -- i.e., "bodily injury" -- the Commonwealth must prove that the victim suffered an injury that "considerably or significantly compromises the usual functioning of any part of the victim's body." Ryan, supra at 490, 105 N.E.3d 1228.

We turn to the direct and circumstantial evidence presented at trial, and the reasonable inferences drawn therefrom, viewed most favorably to the Commonwealth. See Commonwealth v. Bush, 427 Mass. 26, 30, 691 N.E.2d 218 (1998). The defendant struck the victim once with a knife, making contact with two fingers. The only evidence of the victim's injury was as follows: (1) the victim's description of the cuts; (2) his testimony that he "was just losing a lot of blood"; (3) his testimony that he received "basically" a band-aid from EMS; and (4) Cottrell's testimony that she heard the victim say, "[O]uch, he cut me." The Commonwealth contends that evidence of the cuts plus the bleeding fingers was sufficient to meet its burden. We disagree.

The evidence did not demonstrate that the victim suffered an injury that "considerably or significantly compromise[d] the usual functioning of any part of the victim's body." Ryan, 93 Mass. App. Ct. at 490, 105 N.E.3d 1228. There was no testimony from the victim, medical personnel, or any other witness that use of the victim's fingers was hampered for any period of time. The Commonwealth did not introduce medical records indicating that the victim required stitches or suffered an injury that compromised the usual function of a body part. There was no evidence of treatment, continued medical care, or any recovery period from which it could reasonably be inferred that use of the fingers was limited in some way. Nor was there evidence that the victim experienced any pain beyond the initial touching or that the pain was debilitating. We cannot infer substantial impairment from such limited evidence without speculating. See Commonwealth v. Anderson, 396 Mass. 306, 312, 486 N.E.2d 19 (1985) ("The question of guilt must not be left to conjecture or surmise"). Contrast Ryan, 93 Mass. App. Ct. at 491-492, 105 N.E.3d 1228 (evidence sufficient to show "substantial impairment of the physical condition" where there was evidence that victim's hip injury caused him pain and hampered his mobility for several weeks).

The victim's belief that EMS provided insufficient treatment adds nothing to the Commonwealth's case. The victim did not testify that the treatment was insufficient because of any pain, trauma, or compromised physical condition. Rather, he specified that he was concerned that the "knife could have been filled with any type of bacteria" and was upset that EMS did not offer antibiotics.

Finally, were we to accept the Commonwealth's argument that evidence of the cuts and bleeding, without more, constitutes "bodily injury," we would be reading language into the statute that does not exist. The Legislature specified that "bodily injury" includes "any burn, fracture of any bone, subdural hematoma, [or] injury to any internal organ." G. L. c. 265, § 39 (b ). It did not include the words "any cut" in that definition. Thus, the injury at issue in this case must be analyzed under the catch-all provision of the statute requiring proof of "substantial impairment of the physical condition." G. L. c. 265, § 39 (b ). While the cuts here stemmed from a serious and inherently dangerous incident involving a knife fight, the evidence did not show impairment of any kind, much less the "substantial impairment" mandated by the statute. See Ryan, 93 Mass. App. Ct. at 490, 105 N.E.3d 1228.

Having determined that the evidence was insufficient to support a conviction under G. L. c. 265, § 39 (b ), we turn to the appropriate remedy. The defendant acknowledges that assault or battery with intent to intimidate, without causing bodily injury, is a lesser included offense of § 39 (b ). See G. L. c. 265, § 39 (a ). Indeed, the judge correctly instructed the jury as to the lesser included offense, without objection from either party. See Commonwealth v. Roderiques, 462 Mass. 415, 421, 968 N.E.2d 908 (2012) ("A crime is a lesser-included offense of another crime if each of its elements is also an element of the other crime" [citation omitted] ). As the elements of § 39 (a ) constitute a subset of the elements of § 39 (b ), and where, as here, the parties agree that the Commonwealth proved the elements of § 39 (a ) beyond a reasonable doubt, we vacate the judgment on the § 39 (b ) conviction, and we remand for entry of a conviction of the lesser included offense and for resentencing.

2. Peremptory challenges. Relying on Commonwealth v. Benoit, 452 Mass. 212, 892 N.E.2d 314 (2008), the defendant also contends that the judge erred in failing to scrutinize the adequacy and the genuineness of the prosecutor's rationale for exercising certain peremptory challenges. There was no error.

Article 12 of the Massachusetts Declaration of Rights prohibits the exercise of peremptory challenges "to exclude members of discrete groups solely on the basis of bias presumed to derive from that individual's membership in the group." Commonwealth v. Oberle, 476 Mass. 539, 544, 69 N.E.3d 993 (2017), quoting Commonwealth v. Rodriguez, 431 Mass. 804, 807, 731 N.E.2d 71 (2000). "Peremptory challenges are presumed to be proper, but that presumption may be rebutted on a showing that (1) there is a pattern of excluding members of a discrete grouping and (2) it is likely that individuals are being excluded solely on the basis of their membership in that group." Oberle, supra at 545, 69 N.E.3d 993. "Once ... a pattern is found, the burden shifts to the party exercising the challenge to provide a 'group-neutral' explanation for it." Id., quoting Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). "The judge must then determine whether the explanation is both 'adequate' and 'genuine.' " Oberle, supra, quoting Maldonado, supra at 464-465, 788 N.E.2d 968. "[T]he critical point of focus for the trial judge as well as the appellate court turns to the adequacy and genuineness of the explanation proffered by the party seeking to exercise the peremptory challenge." Oberle, supra at 546, 69 N.E.3d 993. See generally Mass. G. Evid. § 1116 (2018).

In the present case, the defendant points to two alleged race-based peremptory challenges. First, in response to the prosecutor's exercise of a peremptory challenge of juror no. 246, the judge, sua sponte, stated, "This is the second of two non-white people. Why? That's a pattern." The prosecutor responded that he challenged the juror based on "[a]ge" and specified that he similarly "challenged two white male jurors who were [nineteen] years old." During the ensuing discussion about the age of certain empanelled jurors and the various challenges, the prosecutor noted, and the judge confirmed, that there were no jurors under the age of twenty-five. After the judge stated that she would exclude the juror, the defendant objected to the challenge. The judge made the specific finding that the challenge "wasn't based on race; it was based on age, and I'm accepting that."

Subsequently, the prosecutor challenged juror no. 269. Prior to any objection or inquiry, the prosecutor stated that the challenge was "because of age." The defendant objected to the challenge. The judge ruled, in relevant part: "I don't disbelieve that the peremptory challenge is being exercised because of age." After further discussion, the judge stated, "I don't think that you are making it up. I really -- I credit you.... So since I credit it, I'm not denying the challenge."

A challenge based on age, if genuine, is an acceptable basis upon which to exercise a peremptory challenge. See Commonwealth v. Lopes, 478 Mass. 593, 597, 91 N.E.3d 1126 (2018) ("young adults are not considered a discrete protected group for the purposes of Batson- Soares peremptory challenges and may be excluded"). The defendant acknowledges as much, but claims that age could have been a pretext and the judge should have conducted a more rigorous evaluation as required by Benoit, 452 Mass. at 218-219, 892 N.E.2d 314.

This case is unlike Benoit. There, the judge found that the challenge of the sole black juror on the venire was "not race based" and that "there [were] race neutral reasons" for it. Id. at 222, 892 N.E.2d 314. The court held that the judge failed to address the genuineness prong of the required analysis, failed to state whether the race-neutral reasons were genuine or bona fide, and failed to conduct, "implicitly or otherwise," a meaningful evaluation of the "adequacy and genuineness" of the prosecutor's reasons. Id. at 222, 892 N.E.2d 314. Here, by contrast, the judge explicitly considered both the adequacy and the genuineness of the prosecutor's explanations.

Initially, the judge found that the challenges were indeed made because of age, not race. See Lopes, 478 Mass. at 602, 91 N.E.3d 1126 ; Oberle, 476 Mass. at 545, 69 N.E.3d 993. Next, she explicitly accepted the prosecutor's rationale, stated that she "did not disbelieve" the prosecutor, and further removed any doubt about the genuineness prong by stating on the record that she "credit[ed]" the prosecutor's explanation. Furthermore, the judge not only inquired about the specific challenge at issue but also inquired as to the prosecutor's basis for challenging or not challenging other jurors. In this way, and viewed as a whole and in context, the judge conducted a meaningful inquiry and satisfied herself that the prosecutor's reasoning was not merely adequate but also genuine. See Lopes, supra at 599, 91 N.E.3d 1126 (reminding judges to consider all relevant facts and circumstances including, inter alia, "similarities between excluded jurors and those, not members of the allegedly targeted group, who have been struck" [citation omitted] ).

Our courts have repeatedly held that in evaluating proffered rationales for a juror's exclusion, "we rely on the good judgment of the trial courts to distinguish bona fide reasons for such [challenges] from sham excuses belatedly contrived to avoid admitting facts of group discrimination." Commonwealth v. Prunty, 462 Mass. 295, 306, 968 N.E.2d 361 (2012), quoting Commonwealth v. Soares, 377 Mass. 461, 491, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). In other words, this was the judge's call to make, and where supported by the record, we do not substitute our review of a cold transcript for her judgment in the arena. See Benoit, 452 Mass. at 220, 892 N.E.2d 314 ("[W]hile appellate courts may be equipped to some extent to assess the adequacy of an explanation, they are particularly ill-equipped to assess its genuineness" [citation omitted] ); Commonwealth v. Garrey, 436 Mass. 422, 430, 765 N.E.2d 725 (2002) ("Where the record shows that the judge gave the matter 'meaningful consideration,' we will not second-guess his decision" [citation omitted] ); Commonwealth v. Curtiss, 424 Mass. 78, 82, 676 N.E.2d 431 (1997), quoting Commonwealth v. Fruchtman, 418 Mass. 8, 15, 633 N.E.2d 369, cert. denied, 513 U.S. 951, 115 S.Ct. 366, 130 L.Ed.2d 319 (1994) ("Sorting out whether a permissible or impermissible reason underlies a peremptory challenge is the function of the trial judge, and we do not substitute our judgment for his if there is support for it on the record"); Soares, supra at 490, 387 N.E.2d 499 ("[W]e are convinced that trial judges, given their extensive experience with jury empanelment, their knowledge of local conditions, and their familiarity with attorneys on both sides, will address these questions with the requisite sensitivity"). In the present case, the judge's express findings were neither unclear nor erroneous, and they are entitled to substantial deference. See E.B. Cypher, Criminal Practice and Procedure § 32:67, at 798-799 (4th ed. 2014) ("The judge's decision whether the reason for the challenge is bona fide or a pretext is entitled to substantial deference on appeal"). Accordingly, the defendant's argument is unavailing.

Conclusion. The judgment on the charge of battery with intent to intimidate causing bodily injury is vacated, and the verdict is set aside. The case is remanded for entry of a conviction on so much of that indictment as alleges the lesser included offense of assault or battery with intent to intimidate, in violation of G. L. c. 265, § 39 (a ) and for resentencing. The judgment on the indictment charging the defendant with a civil rights violation causing injury pursuant to G. L. c. 265, § 37, is affirmed.

So ordered.

      The jury returned a not guilty verdict on a charge of assault and battery by means of a dangerous weapon.

      The victim described himself as bisexual, and there is no dispute that his sexual orientation qualifies as a protected group within the meaning of G. L. c. 265, § 39.

      The codefendant was tried with the defendant and was convicted of the lesser included offense of assault or battery with intent to intimidate.

      The victim, the defendant, and the codefendant are black. Although the defendant disparaged the victim's race as well as his sexual orientation, the defendant was charged as to both the battery and the civil rights violation with acting on the basis of the victim's sexual orientation, and the jury were so instructed.

      The victim testified that he had consumed alcohol and marijuana earlier in the day, and he held a bottle containing an alcoholic beverage during the initial altercation.

      The victim was separately charged, tried, and convicted of assault and battery by means of a dangerous weapon for stabbing Brown.

      The defendant moved for a required finding of not guilty at the close of the Commonwealth's case, at the close of all the evidence, and again prior to sentencing. The judge denied the motions.

      General Laws c. 265, § 39, provides, in relevant part, as follows:
      "(a ) Whoever commits an assault or a battery upon a person ... with the intent to intimidate such person because of such person's race, color, religion, national origin, sexual orientation, gender identity, or disability shall be punished ....
      "(b ) Whoever commits a battery in violation of this section and which results in bodily injury shall be punished .... For purposes of this section, 'bodily injury' shall mean substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin."

      Section 39 (b ) of G. L. c. 265 does not require that the "substantial impairment" be for any specified minimum amount of time. Whether an injury considerably or significantly compromises a usual bodily function must be decided on the facts of each case.

      Cottrell's testimony that she heard the victim say, "[O]uch," tended to contradict the victim's contention that he initially "didn't even notice that [he] got cut." However, seen in the light most favorable to the Commonwealth, her testimony corroborated that he was injured in the first altercation.

      We are not persuaded by the Commonwealth's passing argument that the victim's injuries "occur[red] as the result of repeated harm to any bodily function or organ, including human skin," a statutorily enumerated form of "bodily injury." G. L. c. 265, § 39 (b ). There was no evidence that the cuts stemmed from "repeated" conduct or activity by the defendant.

      The defendant also contends that the jury rendered a factually inconsistent verdict by convicting him of battery with intent to intimidate causing bodily injury, but acquitting him of assault and battery by means of a dangerous weapon. See note 1, supra. However, the defendant concedes in his brief that under Massachusetts precedent, a conviction of the lesser included offense under G. L. c. 265, § 39 (a ), is not inconsistent with that acquittal. Consequently, we need not address that claim further.


source: Caselaw Access Project

author: AGNES, J.

license: Public Domain

text:
    M.G. v. G.A.
    No. 17-P-584
    Appeals Court of Massachusetts, Middlesex..
    Argued April 10, 2018 Decided September 28, 2018
    Andrew W. Piltser Cowan for the plaintiff.
    James J. Coviello, Charlestown (Danielle C. Chattin also present) for the defendant.
    Present: Agnes, Massing, & Neyman, JJ.
   AGNES, J.

This appeal arises from the dismissal of a complaint that sought a G. L. c. 209A abuse prevention order. At the hearing conducted after notice had issued to the defendant, the defendant moved "for a directed verdict" at the close of the plaintiff's case on the ground that the evidence presented by the plaintiff was not sufficient to support the issuance of an order. After hearing argument from counsel, the judge allowed the defendant's motion and dismissed the complaint.

We conclude that the judge's order dismissing the complaint must be vacated and the case must be remanded because the judge interpreted the phrase "sexual relations," as it appears in the definition of "abuse" set forth in G. L. c. 209A, § 1, too narrowly. When the evidence is viewed in the light most favorable to the plaintiff, the facts in this case are that after the parties had begun to engage in consensual sexual intercourse, the plaintiff withdrew her consent, but the defendant remained on top of her and masturbated until he ejaculated on her. As we explain below, this conduct involves "inappropriate contact of a sexual nature," G. L. c. 268, § 21A, which we conclude is encompassed by the phrase "sexual relations" as it appears in the definition of abuse in G. L. c. 209A, § 1.

We also address the defendant's argument that the judge may have dismissed the complaint at the close of the plaintiff's case by not crediting the plaintiff's testimony. See Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974) (second and third sentences). Although on the record before us it is unclear whether the judge did make credibility determinations as permitted by rule 41 (b) (2) in certain cases tried without a jury, we take this occasion to explain why rule 41 (b) (2) is not applicable to G. L. c. 209A hearings in the District Court and Boston Municipal Court. In such cases, as we explain below, the judge has the discretion -- but not the duty -- to rule on the sufficiency of the plaintiff's case at the close of the plaintiff's evidence. If the judge exercises this discretion, he must view the evidence in the light most favorable to the plaintiff, drawing all reasonable and possible inferences in the plaintiff's favor.

Background. On February 2, 2017, the plaintiff, M.G., filed a complaint for an abuse prevention order against the defendant, G.A., pursuant to G. L. c. 209A. The judge declined to issue a temporary abuse prevention order after an ex parte hearing on the complaint. An evidentiary hearing on the matter was subsequently held at which both parties were present and represented by counsel.

Viewing the evidence in the light most favorable to the plaintiff, the judge could have found the following facts. The plaintiff and the defendant began dating in August, 2012, and purchased a condominium together by the end of 2013. In October, 2015, the defendant moved out of the condominium, but the parties continued to have sexual relations. In December, 2015, the defendant initiated a consensual sexual encounter with the plaintiff. The parties engaged in "genital-to-genital contact" as well as "finger-to-genital contact." At some point during the sexual encounter, the plaintiff stated, "I'm done, I'm tired" while the defendant was physically on top of her. She told the defendant at least twice that she "did not want to be doing this." The defendant stated "that he wanted to finish." The defendant then masturbated to ejaculation while remaining physically on top of the plaintiff.

The defendant moved for what he termed a "directed verdict" at the close of the plaintiff's case. The judge allowed the motion, concluding that the plaintiff failed to prove that the defendant caused her to "engage involuntarily in sexual relations by force, threat or duress," G. L. c. 209A, § 1 (c ), because the parties were no longer engaging in sexual intercourse after the plaintiff said she was "done" and "tired." Rather, the judge reasoned, "the most it could have been was an assault and battery at that point in time."

Discussion. 1. Definition of "abuse" under G. L. c. 209A, § 1. In explaining the reasons for his ruling, the judge indicated at one point that the plaintiff failed to prove that the defendant caused her to engage in involuntary sexual relations by force, threat, or duress as a matter of law because the parties were no longer engaging in sexual intercourse after the plaintiff said she was "done" and "tired." The plaintiff argues on appeal that the term "sexual relations" as used in G. L. c. 209A, § 1, should not be so narrowly construed. We agree.

General Laws c. 209A, § 1, defines abuse as "the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; [or] (c) causing another to engage involuntarily in sexual relations by force, threat or duress." Here, the plaintiff proceeded under the third definition of "abuse." The term "sexual relations" is not further defined in G. L. c. 209A, nor has it been clearly defined by this court or the Supreme Judicial Court. It is, however, broadly defined in G. L. c. 268, § 21A, which criminalizes sexual relations between employees of correctional institutions and inmates, as "intentional, inappropriate contact of a sexual nature, including, but not limited to conduct prohibited by [various enumerated criminal sexual offenses]." In the context of G. L. c. 209A, we do not believe that the Legislature intended to define "sexual relations" so narrowly as to encompass only acts of sexual intercourse, where the statute seeks to protect victims from further sexual abuse and where it has been defined broadly in another chapter of the General Laws. The plaintiff testified that after she said, "I'm done, I'm tired," and communicated that she wanted the defendant to stop, he remained physically on top of her and continued to masturbate over her until he ejaculated. In connection with conduct that is encompassed by the phrase "sexual relations," no less than in the context of "sexual intercourse" as used in the statutes proscribing rape, a person's consent may be withdrawn prior to or during the act. See Commonwealth v. Enimpah, 81 Mass. App. Ct. 657, 658-661, 966 N.E.2d 840 (2012). The evidence, taken in the light most favorable to the plaintiff, was sufficient for the fact finder to conclude that the defendant caused the plaintiff to engage involuntarily in sexual relations.

We further conclude that sufficient evidence was introduced to prove that the sexual relations between the parties were the product of force. The term "force" is not further defined in G. L. c. 209A, § 1, and has not been clearly defined by the case law interpreting the statute. Force is an element of both the offense of rape, G. L. c. 265, § 22, and of child rape, G. L. c. 265, § 22A, and cases examining the sufficiency of the evidence as it relates to the use of force in that context are instructive. In Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 254, 897 N.E.2d 105 (2008), this court concluded that sufficient evidence was presented to conclude that the defendant raped the victim, a child, by physical force where "the defendant pulled the victim's legs apart and positioned himself against her spread legs while he engaged in oral sex." In Commonwealth v. Stockhammer, 409 Mass. 867, 873, 570 N.E.2d 992 (1991), the Supreme Judicial Court concluded that sufficient evidence was presented to overcome the defendant's motion for a required finding of not guilty where the evidence indicated that the defendant physically "forced the complainant onto her bed, removed and disarranged her clothes while holding her down, and had intercourse with her while the complainant pushed at him and told him to stop." Using these cases as guidance, and taking the evidence in the light most favorable to the plaintiff, we conclude that the defendant's remaining physically on top of the plaintiff and masturbating to ejaculation after she said, "I'm done. I'm tired" was sufficient to establish the element of force as it appears in G. L. c. 209A, § 1 (c ).

2. Motion for a directed finding in a G. L. c. 209A case. A party who seeks either an initial G. L. c. 209A order or an extension of an order previously issued has the burden of proving, by a preponderance of the evidence, that he or she is "suffering from abuse." Iamele v. Asselin, 444 Mass. 734, 736, 831 N.E.2d 324 (2005), quoting G. L. c. 209A, § 3. See Frizado v. Frizado, 420 Mass. 592, 596, 597, 651 N.E.2d 1206 (1995) ; Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:04 (2011). The defendant is not required to testify or present evidence, although the judge may draw an adverse inference against a defendant who fails to testify. Id. at 596, 651 N.E.2d 1206. The drawing of an adverse inference alone is insufficient to establish that the plaintiff has set forth an adequate case for relief. See id."Thus a defendant's failure to testify cannot be used to justify the issuance of an abuse prevention order until a case is presented on other evidence." Id.

The defendant argues in the alternative that apart from his rulings of law, the judge had independent grounds to dismiss the plaintiff's complaint at the close of her evidence by exercising his right as the finder of fact and simply choosing not to believe the plaintiff's testimony in whole or in part. See Mass. R. Civ. P. 41 (b) (2). See also Skowronski v. Sachs, 62 Mass. App. Ct. 630, 633 n.4, 818 N.E.2d 635 (2004) ; Ryan, Elliott & Co. v. Leggat, McCall & Werner, Inc., 8 Mass. App. Ct. 686, 689-690, 396 N.E.2d 1009 (1979). Generally, Mass. R. Civ. P. 41 (b) (2) allows a judge to apply the directed verdict standard from Mass. R. Civ. P. 50 (a), 365 Mass. 814 (1974), and, viewing the evidence in the light most favorable to the plaintiff, determine whether from anywhere in the evidence there are facts from which a rational inference may be drawn in favor of the plaintiff. See Curtiss-Wright Corp. v. Edel-Brown Tool & Die Co., 381 Mass. 1, 3-4, 407 N.E.2d 319 (1980). Alternatively, Mass. R. Civ. P. 41 (b) (2) allows a judge to exercise his or her discretion as the trier of fact, "weigh[ing] the evidence and resolv[ing] all questions of credibility, ambiguity, and contradiction in reaching a decision." Ryan, Elliott & Co., 8 Mass. App. Ct. at 689, 396 N.E.2d 1009. Written factual findings supporting the judge's decision to allow a motion for involuntary dismissal must be made pursuant to Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996), when the judge follows the second option and elects to act as a trier of fact. See Mass. R. Civ. P. 41 (b) (2).

The question therefore is whether Mass. R. Civ. P. 41 (b) (2) applies in G. L. c. 209A cases tried in the District Court. The answer, we conclude, is "no." The Massachusetts Rules of Civil Procedure apply "in the District Court and in the Boston Municipal Court, in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in [ Mass. R. Civ. P. 81, as amended, 423 Mass. 1412 (1996) ]." Mass. R. Civ. P. 1, as amended, 450 Mass. 1403 (2008). In the District Court, "[t]hese rules apply to all civil proceedings involved in cases traditionally considered tort, contract, replevin, or equity actions ...." Mass. R. Civ. P. 81 (a) (2). This was true even prior to the 1996 merger of the District/Municipal Courts Rules of Civil Procedure into the Massachusetts Rules of Civil Procedure. See, e.g., Dist./Mun. Cts. R. Civ. P. 81 (a) (1995). General Laws c. 209A proceedings are purely statutory and, thus, are not among the cases to which the Massachusetts Rules of Civil Procedure, including in particular Mass. R. Civ. P. 41 (b) (2), apply in the District Court. See Adoption of Paula, 420 Mass. 716, 732 n.17, 651 N.E.2d 1222 (1995).

Guidance is supplied, however, by Mass. R. Civ. P. 81 (a) (3), which informs us that if a procedural question is not governed by statute or another applicable rule, the practice "shall follow the course of the common law, as near to these rules as may be ...." As there is no provision in G. L. c. 209A that provides a defendant with a right to challenge the sufficiency of the evidence at the close of the plaintiff's case, we look to the common law, i.e., the law in existence prior to the adoption of the rules of civil procedure in 1973.

At common law, "[n]o pre-rule procedure existed in Massachusetts for dismissal of a jury-waived or equity case, after the plaintiff had rested, on the ground that upon the facts and the law the plaintiff had shown no right to relief." Reporter's Notes to Rule 41 (b) (2), Massachusetts Rules of Court, Rules of Civil Procedure, at 65 (Thomson Reuters 2018). See Hurley v. O'Sullivan, 137 Mass. 86, 86-87 (1884) ("The respondent was not entitled to the two rulings requested at the close of the petitioner's evidence. Without discussing them in any other respect, he did not propose to submit the case finally upon that evidence. Unless he did so, he could not require the judge to express an opinion upon the weight and sufficiency of the petitioner's evidence, or whether he had or not made out a prima facie case. The refusal of the judge to rule in accordance with his request, at this stage of the case, does not afford him any ground of exception"); McMahon v. Tyng, 14 Allen 167, 169 (1867) ("The defendant was not entitled to a ruling upon the plaintiff's case, reserving to himself the right to put in his own case afterwards. No exception lies to this refusal"). Nevertheless, while a judge was not required to entertain such a motion at the close of the plaintiff's case, he had discretion to do so. See Kingsford v. Hood, 105 Mass. 495, 498 (1870) ; Wetherbee v. Potter, 99 Mass. 354, 359-360 (1868) ; Bradley v. Poole, 98 Mass. 169, 179 (1867). Because there was discretion at common law to entertain a motion for a required or directed finding challenging the sufficiency of the evidence at the close of the plaintiff's case, Mass. R. Civ. P. 81 (a) (3) preserves that option for judges sitting in the District Court. However, Mass. R. Civ. P. 81 (a) (3) does not preserve the option to make credibility determinations at this stage of the proceedings. At common law, there was no practice like there is under Mass. R. Civ. P. 41 (b) (2), whereby a judge in a jury-waived proceeding could determine the credibility of the plaintiff at the close of her case and dismiss a complaint on that basis.

In determining whether to exercise discretion and entertain a challenge to the sufficiency of the evidence presented by the plaintiff at the close of her case in a G. L. c. 209A proceeding, as judges do routinely in civil cases involving, for example, tort or contract, judges should consider the nature and purpose of G. L. c. 209A. In cases brought pursuant to G. L. c. 209A, the focus of the proceeding must be on the plaintiff's need for protection. Singh v. Capuano, 468 Mass. 328, 332, 10 N.E.3d 1074 (2014). As we said in S.T. v. E.M., 80 Mass. App. Ct. 423, 430-431, 953 N.E.2d 269 (2011), "each party should be given a fair opportunity to present his case. While a judge surely may exclude irrelevant or inadmissible evidence, or even interrupt an argument or a witness examination that has become repetitious, he should not terminate a hearing without ensuring that he has heard all the relevant and admissible evidence once. [J]udicial discretion is not unlimited, and each side must be given a meaningful opportunity to challenge each other's evidence" (quotation and citations omitted).

These considerations suggest that when presented with a defendant's motion for a directed finding at the close of the plaintiff's case on the ground that the evidence presented did not support the issuance or extension of a G. L. c. 209A abuse prevention order, there are advantages to first inquiring whether the defendant intends to present evidence and, if so, hearing any evidence that the defendant wishes to present before acting on the motion. The judicial burden of hearing the defendant's evidence is minimal, and hearing such evidence will enable the judge to make a more informed decision in these sensitive cases, in which the safety of the plaintiff is often at issue. Because the majority of these cases involve self-represented parties, inviting the defendant to present evidence, which in turn gives the plaintiff the opportunity to cross-examine the defendant or any witnesses he may call, may produce relevant and probative evidence that otherwise would not be presented. If the defendant does not wish to present any evidence, the judge may, at that point, make credibility determinations and adjudicate the case in the ordinary course. See Frizado, 420 Mass. at 596, 651 N.E.2d 1206 ("The plaintiff must make the case for the awarding of relief").

Here, based on the record before us, there are indications that the judge, prior to the close of the evidence, may have discredited portions of the plaintiff's testimony relating to whether the sexual acts at issue were voluntary. Because, as we explained above, Mass. R. Civ. P. 41 (b) (2) is not applicable in G. L. c. 209A cases heard in the District Court, the judge was not authorized to make credibility determinations at the close of the plaintiff's case unless and until the defendant rested.

Conclusion. We are mindful of the large volume of cases under G. L. c. 209A that come before the District Court and Boston Municipal Court week in and week out, and the careful attention judges give to these sensitive and important cases. Nothing we have said today should interfere with the efficient disposition of these cases. Judges in those courts retain their traditional, discretionary authority to dismiss a complaint at the close of the plaintiff's case when the evidence, if believed, would not entitle the plaintiff to relief. Further, nothing in this opinion requires a defendant who otherwise wishes not to testify or to present evidence to do so. However, based on the Massachusetts Rules of Civil Procedure, judges sitting in the District Court and Boston Municipal Court hearing a complaint for relief under G. L. c. 209A, after notice to the defendant, are not authorized to dismiss the complaint at the close of the plaintiff's case simply because they do not believe some or all of the plaintiff's testimony. Instead, the resolution of questions of credibility, ambiguity, and contradiction must await the close of the evidence.

For the reasons set forth above, we vacate the order dismissing the plaintiff's complaint and remand the matter for further proceedings not inconsistent with this opinion.

So ordered.

      Strictly speaking, the motion was mislabeled. "Motions for directed verdicts are proper only when a jury have been empanelled. Only juries reach verdicts; judges make findings" (citations omitted). Kendall v. Selvaggio, 413 Mass. 619, 620 n.3, 602 N.E.2d 206 (1992). See Joseph Freedman Co. v. North Penn Transfer, Inc., 388 Mass. 551, 554 n.4, 447 N.E.2d 657 (1983). In fact, prior to the 1996 merger of the District/Municipal Courts Rules of Civil Procedure into the Massachusetts Rules of Civil Procedure, there was no such thing as a motion for a "directed verdict" in District Court practice. See Joseph Freedman Co., supra. The appropriate motion at the close of the plaintiff's case in a jury-waived trial would be a motion for a directed finding or a required finding.

      While this case was tried in the District Court, our analysis applies equally to cases tried in the Boston Municipal Court. See Mass. R. Civ. P. 1, as amended, 450 Mass. 1403 (2008) (explaining that "except when the context means something to the contrary," District Court includes the Boston Municipal Court).

      General Laws c. 265, § 22, provides, in pertinent part: "Whoever has sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will ... shall be punished by imprisonment in the state prison for life or for any term of years."

      General Laws c. 265, § 22A, states: "Whoever has sexual intercourse or unnatural sexual intercourse with a child under 16, and compels such child to submit by force and against his will or compels such child to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for life or for any term of years."

      Rule 41 (b) (2) of the Massachusetts Rules of Civil Procedure provides as follows: "On motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with these rules or any order of court. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff the court shall make findings as provided in [Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996) ]."

      Rule 50 (a) of the Massachusetts Rules of Civil Procedure provides as follows: "A party may move for a directed verdict at the close of the evidence offered by an opponent, and may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A party may also move for a directed verdict at the close of all the evidence. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury." Rule 50 (a) applies only to cases tried to a jury. J.W. Smith & H.B. Zobel, Rules Practice § 50.2 (2d ed. 2007). See Wire & Textile Mach. v. Robinson, 332 Mass. 417, 418, 125 N.E.2d 403 (1955) ; Forbes v. Gordon & Gerber, Inc., 298 Mass. 91, 94-95, 9 N.E.2d 416 (1937).

      Civil proceedings under G. L. c. 209A are commenced by filing a complaint. G. L. c. 209A, § 3A. Throughout the chapter, the parties are referred to as "plaintiff" and "defendant." See, e.g., G. L. c. 209A, § 3. Although the proceeding that occurs after notice to the defendant is referred to as a "hearing," see G. L. c. 209A, § 3, "[p]roceedings held pursuant to G. L. c. 209A are no different than any other adversarial hearings in that each party has a right to present evidence, and the moving party must satisfy the burden of proof and subject its witnesses to cross-examination." C.O. v. M.M., 442 Mass. 648, 657, 815 N.E.2d 582 (2004). See S.T. v. E.M., 80 Mass. App. Ct. 423, 429-431, 953 N.E.2d 269 (2011). Whether the G. L. c. 209A proceeding after notice to the defendant is referred to as a "hearing" or a "trial," we look to the Massachusetts Rules of Civil Procedure because they apply to "all civil proceedings" unless noted otherwise. See Mass. R. Civ. P. 81 (a) (1)-(3).

      Rule 81 (a) (3) of the Massachusetts Rules of Civil Procedure provides as follows: "In respects not governed by statute, or in the case of the District Court not governed by other District Court rules, the practice in civil proceedings to which these rules do not apply shall follow the course of the common law, as near to these rules as may be, except that depositions shall not be taken, nor interrogatories served, save by order of the court on motion, with notice, for good cause shown." See Mass. R. Civ. P. 81 (e), 365 Mass. 841 (1974) ("When no procedure is specifically prescribed, the court shall proceed in any lawful manner not inconsistent with the Constitution of this Commonwealth, these rules, or any applicable statute").

      Of course, there may be cases in which the legal insufficiency of the plaintiff's case is plain, such as when the defendant is not a "family or household member" within the meaning of G. L. c. 209A, § 1. In such a case, a judge sitting in the District Court or Boston Municipal Court would be authorized to allow a motion for a directed finding at the close of the plaintiff's case and to enter judgment for the defendant.

      The limitation on the application of the rules of civil procedure expressed in Mass. R. Civ. P. 81 (a) (2) does not apply to proceedings brought in the Superior Court, see Mass. R. Civ. P. 81 (a) (1), or in the Probate and Family Court. See Mass. R. Dom. Rel. P. 41 (b) (2). Nonetheless, the advantages in a G. L. c. 209A case associated with hearing both the plaintiff's case and the defendant's case, if the defendant wishes to testify or call witnesses, before making a decision applies equally to judges in the Superior Court and Probate and Family Court.

      Nothing we say in this opinion affects the settled law that in a G. L. c. 209A hearing, after notice to the defendant, "the moving party must satisfy the burden of proof and subject its witnesses to cross-examination." C.O. v. M.M., 442 Mass. 648, 657, 815 N.E.2d 582 (2004). Thus, before the plaintiff rests, the defendant has the right to cross-examine the plaintiff or any witness called by the plaintiff to demonstrate inconsistencies, contradictions, or ambiguities, if any, in the evidence. Furthermore, the Supreme Judicial Court has repeatedly emphasized that the "judge must be the directing and controlling mind at the trial, and not a mere functionary to preserve order and lend ceremonial dignity to the proceedings" (quotation omitted). Commonwealth v. Carter, 475 Mass. 512, 526, 58 N.E.3d 318 (2016). The judge thus "has discretion to exclude irrelevant evidence, sua sponte, provided he does not exhibit bias in the process." Commonwealth v. Lucien, 440 Mass. 658, 664, 801 N.E.2d 247 (2004). See Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 74, 823 N.E.2d 404 (2005) ("It is well established that a judge in this Commonwealth may question witnesses to clarify and develop evidence and to avert perjury").


text:
    Agripino Polanco ROSA, Appellant, et al., Plaintiff, v. Rafael DELACRUZ et al., Respondents.
    No. 146 SSM 23
    Court of Appeals of New York.
    October 23, 2018
    Gratt & Associates, P.C., Sea Cliff (Mitchell Dranow of counsel), for appellant.
    Rivkin Radler LLP, Uniondale (Henry Mascia of counsel), for Rafael Delacruz, respondent.
    Russo & Tambasco, Melville (Susan J. Mitola of counsel), and Law Office of Dennis C. Bartling, Westbury, for Devone Harp, respondent.
    OPINION OF THE COURT
   MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

In support of their motions for summary judgment, defendants relied on independent physician reports finding that plaintiff had a normal range of motion six months following the accident, with no permanent effects, and on the results of a shoulder MRI performed six weeks after the accident by plaintiff's radiologist, who reported that plaintiff's rotator cuff tendons were intact and there was no MRI evidence of a tear. Plaintiff's responding medical submissions were inadequate to raise a triable issue of fact because they failed to acknowledge, much less explain or contradict, the radiologist's finding. Instead, plaintiff relied on the purely conclusory assertion of his orthopedist that there was a causal relationship between the accident and anterior labrum/rotator cuff tears that he observed (and repaired) during surgery nearly two years after the accident.

I respectfully dissent and would reverse the order of the Appellate Division, deny defendants' motions, and reinstate the complaint. Even assuming, arguendo, that defendants met their initial burden on their respective motions, I would conclude that plaintiff submitted sufficient evidence to raise a triable issue of fact in opposition thereto (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).

Here, plaintiff tendered his medical records, together with reports of an orthopedist who examined him. The reports establish that the examining orthopedist diagnosed plaintiff with a rotator cuff tear shortly after the subject accident, concluded that such tear is causally related to the accident, and opined that the tear permanently limited plaintiff's use of his left shoulder (see generally Perl v. Meher , 18 N.Y.3d 208, 219, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] ). The reports also sufficiently rebut defendants' theory that plaintiff's shoulder injuries were preexisting. The opinion of plaintiff's orthopedist with respect to the etiology of plaintiff's injuries is based on, among other things, that physician's review of plaintiff's medical history and personal observations that physician made during the arthroscopic procedure in which he repaired plaintiff's left shoulder (see generally id. at 218-219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ). Given the conflicting expert opinions, summary judgment is not appropriate in this case. This is a matter to be resolved by a trier of fact.

Chief Judge DiFiore and Judges Stein, Garcia and Feinman concur.

Judge Fahey dissents in an opinion, in which Judges Rivera and Wilson concur.

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, in a memorandum.

      I specifically note that plaintiff's orthopedist made this diagnosis based in part on his review of an MRI study of plaintiff's left shoulder that was conducted approximately six weeks after the subject accident.


author: DeWine, J.

text:
    In re Complaint of HARRIS DESIGN SERVICES, Appellant, v. COLUMBIA GAS OF OHIO, INC., Intervening Appellee;
    Public Utilities Commission of Ohio, Appellee.
    No. 2017-0436
    Supreme Court of Ohio.
    Submitted April 10, 2018 Decided June 28, 2018
    Rinehart, Rishel & Cuckler, Ltd., and Grant A. Wolfe, Columbus, for appellant.
    Michael DeWine, Attorney General, and William L. Wright, Robert A. Eubanks, and Thomas G. Lindgren, Assistant Attorneys General, for appellee.
    Brooke E. Wanchek, Stephen B. Seiple, and Joseph M. Clark, Columbus, for intervening appellee.
   DeWine, J.

{¶ 1} A public-utility company claims that it gave its customer adequate notice that natural-gas service to the customer's property had been disconnected by hanging two notices on the front door of the property. The customer, who was not occupying the property, did not discover the notices and thus did not realize that the gas had been disconnected until the pipes froze and burst, causing damage. Whether the utility company furnished adequate notice of the service disconnection is the main question in this appeal from orders of the Public Utilities Commission of Ohio ("PUCO"). We conclude that the utility did provide adequate notice through the door tags, and we affirm the orders.

BACKGROUND

{¶ 2} Columbia Gas of Ohio, Inc. ("Columbia"), supplied natural-gas service to a property in Columbus ("the property") that was leased to Harris Design Services ("HDS"), an architectural-design firm. In November 2007, the firm physically vacated the property but continued to lease and maintain it.

{¶ 3} In February 2014, Bruce Harris, the owner and president of HDS, discovered that the building had sustained damage as a result of water pipes that had burst due to freezing temperatures. The pipes had frozen because, unbeknownst to HDS, Columbia had disconnected gas service to the property. HDS eventually filed a complaint, alleging that Columbia had failed to give proper notice of the disconnection, in violation of R.C. 4905.22, which requires utilities to provide "necessary and adequate service."

{¶ 4} The PUCO held a hearing on the complaint. The evidence established that service to HDS's building had been disconnected in September 2013 after a cable company hit a gas line near the property. Ryder Long, a Columbia service technician, was sent to repair the line. After making the repairs, Long reestablished service to the meter, but he left the meter valve off and locked it so that no gas would go into the structure until service was reestablished. He knocked on the front door to speak with someone about restoring service to the building, but no one answered. Long testified that he had prepared a tag to hang on the door to notify the customer to call Columbia to reestablish service but saw that he did not need to leave the tag, because there was already a yellow Columbia tag on the door. He believed that the yellow tag had been placed on the door by a different technician who had been there earlier in the day.

{¶ 5} In November 2013, Long was called back to the property because the gas line had been hit a second time. After making repairs, Long checked the meter valve and saw that it was still off and locked. Once again, he knocked on the door and no one answered. Long testified that he saw the yellow door tag still hanging on the door from the September incident and that this time, he placed an orange tag on top of the yellow tag.

{¶ 6} In its posthearing brief, HDS challenged the credibility of Long's testimony about the door tags. It noted that three individuals had testified that they had visited the property on behalf of HDS during the relevant time period and none of them had stated that he or she had seen a tag on the door. Janet Harris, Bruce's wife and the office manager for HDS, said that she had driven by the property on a monthly basis. Bruce Harris testified that he had been in the building in December 2013 (when everything was fine) and again in February 2014 (when he discovered the damage). And a landscaper who mowed the lawn through November 2013 testified that he did not remember seeing anything on the door.

{¶ 7} HDS further argued that even if door tags had been hung on the door, they would not constitute sufficient notice. In addition to door tags, HDS maintained, Columbia should have sent letters and made telephone calls to HDS.

{¶ 8} Crediting Long's testimony, the PUCO found that Columbia had placed the tags on the door. It further concluded that hanging a notice on a door to a property constitutes adequate notice of disconnection after an emergency repair. Thus, it determined that HDS had failed to establish that Columbia had acted improperly.

{¶ 9} HDS filed a rehearing application alleging errors in the PUCO's decision. The PUCO's first rehearing entry granted HDS's rehearing application "for the limited purpose of further consideration of the matters specified in the application for rehearing." Pub. Util. Comm. No. 15-405-GA-CSS, ¶ 1 (July 20, 2016). The PUCO later issued a second rehearing entry in which it substantively rejected the alleged errors assigned by HDS and denied HDS's rehearing application. HDS then filed this appeal.

DISCUSSION

{¶ 10} HDS presents six propositions of law on appeal. For ease of discussion, we divide these propositions into three topics: (1) door tags-whether Columbia hung them on the property's front door and, if so, whether that constituted adequate notice, (2) the PUCO's actions related to its rehearing process, and (3) evidentiary decisions made by the PUCO attorney examiner at the initial hearing.

Door-Tag Issues

{¶ 11} HDS first challenges the PUCO's determination that Columbia provided adequate notice of the disconnection by hanging tags on the property's front door. HDS challenges the PUCO's finding that door tags were placed on the door, arguing that that finding was based on evidence that was uncorroborated, lacking in detail, and not credible. It also asserts that even if door tags were hung on the door, they did not provide adequate notice and Columbia should have done more to alert HDS about the disconnection.

{¶ 12} As to the PUCO's factual finding that door tags were hung on the door, the result is dictated largely by our standard of review. We will not reverse or modify a PUCO decision as to questions of fact when the record contains sufficient probative evidence to show that the PUCO's decision was not manifestly against the weight of the evidence and was not so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty. Monongahela Power Co. v. Pub. Util. Comm. , 104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d 921, ¶ 29.

{¶ 13} There was no direct evidence contradicting Long's testimony about the door tags. HDS suggests that it is implausible that Long could remember the details of his visits nearly two years later. But the PUCO believed Long's testimony, noting that he remembered "explicit details" from his visits, namely, his having seen the same yellow tag hanging from the door in September 2013 and November 2013. Pub. Util. Comm. No. 15-405-GA-CSS, ¶ 13 (May 25, 2016). HDS points to the testimony of the three witnesses who did not mention seeing the door tags. But there was no evidence that any of these witnesses had actually approached the front door of the building. Although Mr. Harris entered the property, there was no evidence presented to establish that he went in through the front door.

{¶ 14} We defer to the PUCO's credibility determinations in its role as finder of fact. See Lycourt-Donovan v. Columbia Gas of Ohio, Inc. , 152 Ohio St.3d 73, 2017-Ohio-7566, 93 N.E.3d 902, ¶ 35.

The PUCO received evidence, weighed that evidence, and determined that two tags had been hung on the property's front door. Because there is sufficient probative evidence in the record to support the PUCO's findings, we conclude that HDS has not carried its burden to justify reversal of those findings. Monongahela Power Co. at ¶ 29.

{¶ 15} We turn next to HDS's contention that even if tags were placed on the door, they did not constitute adequate notice. The PUCO determined that Columbia complied with R.C. 4905.22, which provides that "[e]very public utility shall furnish necessary and adequate service and facilities, and every public utility shall furnish and provide with respect to its business such instrumentalities and facilities, as are adequate and in all respects just and reasonable." In doing so, the PUCO concluded that "placing a notice on the door is adequate notice of a disconnection after an emergency repair and that [Columbia] complied with all standards and regulations." Pub. Util. Comm. No. 15-405-GA-CSS at ¶ 14 (May 25, 2016).

{¶ 16} In holding that the door-tag notice was adequate, the PUCO relied on its adoption of federal gas-pipeline safety standards in Ohio Adm.Code 4901:1-16-03(A). These standards require a utility to comply with its own internal standards. Columbia's internal standards required a technician to leave a tag on the door when gas must be shut off and no one answers the door. In addition, the PUCO cited administrative regulations that provide that attaching written notice in a conspicuous location on the premises is required when gas service is disconnected for reasons other than safety. See Ohio Adm.Code 4901:1-13-09(B)(2) (disconnection for tampering or unauthorized reconnection) and 4901:1-18-06(A)(2) (disconnection for nonpayment).

{¶ 17} HDS's merit brief almost completely ignores the PUCO's legal rationale for concluding that Columbia's actions were adequate. It does not cite, let alone analyze, the administrative-code provisions that formed the primary basis for the PUCO's determination. The one rule that HDS does analyze, Ohio Adm.Code. 4901:1-13-02, was not relied on by the PUCO. Only in its reply brief does HDS try to mount a substantive challenge to the legal rationale set forth in the PUCO decision. The waiver doctrine, however, forecloses our consideration of arguments first raised on reply. In re Application of Am. Transm. Sys., Inc. , 125 Ohio St.3d 333, 2010-Ohio-1841, 928 N.E.2d 427, ¶ 35.

{¶ 18} The thrust of HDS's argument in its merit brief is that the door-tag notice was not adequate, because Columbia could have provided better notice-for example, through a telephone call or a letter. But HDS fails to tether this proposition to any legal requirement. And the question is not whether another type of notice might have been more likely to provide actual notice to the customer but whether the door-tag notice comported with the requirement that Columbia "furnish necessary and adequate service," R.C. 4905.22. We find nothing "unlawful or unreasonable" in the PUCO's determination that the door-tag notice was adequate, and therefore, we will not disturb its holding in this regard. Constellation NewEnergy, Inc. v. Pub. Util. Comm. , 104 Ohio St.3d 530, 2004-Ohio-6767, 820 N.E.2d 885, ¶ 50.

The Rehearing Process

{¶ 19} HDS next asserts that because the PUCO granted HDS's rehearing application, the agency was required by statute to grant HDS a "live, in-person, rehearing." HDS further contends that the failure to hold such a hearing violated its procedural-due-process rights. HDS also argues that it was not given proper notice of how the PUCO's rehearing process would unfold. Before we can get to these arguments, we must address Columbia's and the PUCO's contention that the issues are not properly before this court.

{¶ 20} R.C. 4903.10 provides that an application for rehearing "shall be in writing and shall set forth specifically the ground or grounds on which the applicant considers the order to be unreasonable or unlawful. No party shall in any court urge or rely on any ground for reversal, vacation, or modification not so set forth in the application." We have "long held that setting forth specific grounds for rehearing is a jurisdictional prerequisite for our review." In re Complaint of Cameron Creek Apts. v. Columbia Gas of Ohio, Inc. , 136 Ohio St.3d 333, 2013-Ohio-3705, 995 N.E.2d 1160, ¶ 23. Thus, "when an appellant's grounds for rehearing fail to specifically allege in what respect the PUCO's order was unreasonable or unlawful, the requirements of R.C. 4903.10 have not been met." Discount Cellular, Inc. v. Pub. Util. Comm. , 112 Ohio St.3d 360, 2007-Ohio-53, 859 N.E.2d 957, ¶ 59. We strictly enforce R.C. 4903.10's requirements. Id.

{¶ 21} In this case, HDS's rehearing application alleged three errors. HDS asserted that the PUCO erred in finding that HDS had not met its burden of proof, in determining that the door tags constituted adequate notice of the disconnection, and in making certain evidentiary findings. The PUCO issued a first rehearing entry granting HDS's rehearing application for the purpose of further considering those alleged errors, but upon review of HDS's arguments, it denied the application in a second rehearing entry.

{¶ 22} In contrast to HDS's rehearing application, HDS's proposition of law Nos. Two through Five assert (or depend on the assertion) that the PUCO was required to hold a live, in-person hearing during the rehearing phase after conditionally granting HDS's rehearing application. Because these propositions were not presented below for the PUCO's consideration, Columbia and the PUCO argue, we do not have jurisdiction over them.

{¶ 23} HDS rejoins that because these propositions all fault the PUCO for actions that the PUCO took after HDS filed its rehearing application, it could not have included these issues in its rehearing application. But once the PUCO issued its second rehearing entry, HDS should have filed a second rehearing application that asserted the rehearing-related arguments it now asserts for the first time. Because it did not do so, we cannot consider these arguments. See Lycourt-Donovan , 152 Ohio St.3d 73, 2017-Ohio-7566, 93 N.E.3d 902, at ¶ 53 ; Discount Cellular , 112 Ohio St.3d 360, 2007-Ohio-53, 859 N.E.2d 957, at ¶ 66.

Exclusion of Evidence

{¶ 24} HDS asserts that the PUCO erred in upholding the attorney examiner's exclusion of certain documentary and testimonial evidence. First, HDS objects to the PUCO's affirmance of the attorney examiner's exclusion of documents that HDS obtained from Columbia in discovery. The attorney examiner excluded the documents on the grounds that HDS had failed to create a foundation for the documents with witness testimony. Because "[t]he common manner of identifying a document is through testimony of a witness with knowledge," St. Paul Fire & Marine Ins. Co. v. Ohio Fast Freight, Inc. , 8 Ohio App.3d 155, 158, 456 N.E.2d 551 (10th Dist.1982), citing Evid.R. 901(B)(1), we conclude that the PUCO's affirmance of the attorney examiner's ruling does not reflect an abuse of its "very broad discretion to conduct its hearings,"

Greater Cleveland Welfare Rights Org. v. Pub. Util. Comm. , 2 Ohio St.3d 62, 68, 442 N.E.2d 1288 (1982).

{¶ 25} Second, HDS challenges the PUCO's affirmance of the attorney examiner's rulings on when and whether HDS could call certain witnesses. The attorney examiner denied HDS's attempt to call Long as upon cross-examination at the beginning of HDS's case-in-chief. The attorney examiner explained that because Long's testimony was prefiled and because HDS's questions concerned the prefiled testimony, HDS had to hold its questions for Long until after Columbia called him during its defense. This is another hearing-management decision that falls squarely within the "very broad discretion" granted to the PUCO in the conduct of its hearings. Id. Indeed, the rules specifically empower the PUCO to "[d]etermine the order in which the parties shall present testimony and the order in which witnesses shall be examined," Ohio Adm.Code 4901-1-27(B)(2).

{¶ 26} HDS's other witness-related challenge concerns the PUCO's affirmance of the attorney examiner's denial of HDS's request to call Bruce and Janet Harris as witnesses on rebuttal. As with Long, the testimony of the Harrises had been prefiled. In refusing to allow the Harrises to be called again in rebuttal, the examiner noted that the case was mainly factual in nature, that the submission of irrelevant or cumulative evidence should be avoided, and that HDS had been given an opportunity to develop the facts that it believed were relevant to its case. As before, the attorney examiner's ruling here falls within the broad authority granted to the PUCO to conduct its hearings and control the manner of witness testimony. Furthermore, HDS has not identified what part of Columbia's defense it wanted the witnesses to rebut or how it has been prejudiced.

CONCLUSION

{¶ 27} We affirm the PUCO's orders for the reasons set forth above.

Orders affirmed.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, and DeGenaro, JJ., concur.