text:
    Jane F. MACDONALD v. Gary D. ENGLE & others.
    17-P-61
    Appeals Court of Massachusetts.
    Entered: August 7, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Personal representative and special personal representative of the estate of Geoffrey Alan MacDonald.

      GDE Investment Corp., Wayne E. Engle, and James A. Coyne.

   The plaintiff, Jane F. MacDonald, appeals from a Superior Court judgment that denied her motion for discovery, allowed the defendants' motion to dismiss or, in the alternative, for summary judgment, and dismissed the plaintiff's complaint. We affirm.

Background. 1. Procedural history. We detail the procedural history relevant to the issues before us. The defendants filed a motion to dismiss. In response, the motion judge issued an order which stated that in light of the defendants' reliance on publicly available documents filed with the Securities and Exchange Commission, he had decided to "consider the portion of the [defendants'] motion to dismiss that is based on the applicable statute of limitations as, in the alternative, seeking summary judgment." As a result, the judge allowed the parties to submit additional admissible evidence relevant to the statute of limitations issue. The order also stated that the plaintiff was entitled to "make a properly supported request under Mass. R. Civ. P. 56(f) for the opportunity to conduct discovery on the statute of limitations issues," and that "[i]f she were to make such a request, [she] would have to demonstrate that ... she can make a 'threshold showing' that there is 'some factual basis' for her allegation that [her husband,] Geoffrey MacDonald,[ ] had no actual knowledge of the challenged business transactions."

The judge granted summary judgment to the defendants on the plaintiff's claims arising from the challenged business transactions, concluding that those claims are time barred because the plaintiff failed to raise a triable issue of fact concerning MacDonald's actual knowledge by January, 2000, of said business transactions. The judge also granted the defendants' motion to dismiss, concluding that the plaintiff's remaining claims fail as a matter of law based on (1) the express provisions in the GDE Acquisition Limited Partnership agreement (GDE LP agreement) and the Equis Financial Group Limited Partnership agreement (EFG LP agreement) (collectively, the partnership agreements), and (2) the absence of a fiduciary duty arising from the defendant, Gary D. Engle (Engle), and MacDonald's special relationship of trust and confidence.

On appeal, the plaintiff maintains that the judge erred for three reasons. As to the motion for summary judgment, the plaintiff asserts the judge incorrectly applied a constructive knowledge standard for the required actual knowledge standard in determining the accrual date for the claims. In addition, the plaintiff argues that the judge erred in excluding James Erdekian's affidavit and attached records, because such records are admissible under the business records exception, G. L. c. 233, § 78, and they present a genuine dispute as to whether MacDonald had actual knowledge of the challenged business transactions in 2000. As to the motion to dismiss, the plaintiff argues the judge erred because he disregarded § 8.6 of the partnership agreements when concluding that § 15.15 of such agreements expressly provides that the defendants could engage in other business ventures.

2. Motion to dismiss -- facts. We recite the facts alleged in the plaintiff's complaint for purposes of our review of the motion to dismiss. See Baker v. Wilmer Cutler Pickering Hale & Dorr, LLP, 91 Mass. App. Ct. 835, 842 (2017). To properly understand the background of this case and the complexity of all its moving parts, we recite the facts in detail.

A. Entities involved and respective ownership interests. In 1995, MacDonald and Engle became "50/50 partners" of Equis Financial Group (EFG). , Although MacDonald and Engle's alleged oral agreement was that they would equally share the ownership of EFG, Engle, in fact, had a "majority by approximately 1 [percent] to ensure his control in the development of the businesses, assets and opportunities ... arising out of [EFG], its subsidiaries, affiliates and [e]xisting [p]rograms." EFG's various subsidiaries, affiliates, and sponsored programs included, but were not limited to, EFG LP and AFG investment trusts A, B, C, and D (AFG trusts or trusts). Ninety-nine percent of EFG LP was owned by GDE LP, a limited partnership that MacDonald and Engle owned. EFG LP's remaining one percent interest was owned by Equis Corporation (Equis), which Engle solely owned.

The AFG trusts' special beneficiary was EFG LP, and AFG ASIT Corporation (AFG ASIT) controlled the trusts. AFG ASIT was a "wholly-owned subsidiary of EFG LP." EFG LP and EFG's "ownership and control of AFG ASIT ... enabled EFG LP and [EFG] to profit from the opportunities arising from the control of the AFG trusts and the investments to be made by them."

In 1997, the defendants, James A. Coyne and Engle, acquired ownership of a public real estate company later known as Semele. MacDonald did not have a management or other role in Semele. Engle and Coyne also owned two other entities: Equis II Corporation (Equis II) and Ariston Corporation (Ariston).

B. Challenged transactions and alleged concealment. The plaintiff alleges that "crucial material facts" of the defendants' scheme to freeze out MacDonald from Equis II and Semele "were never disclosed to MacDonald." The plaintiff also alleges that "actions were taken to mislead MacDonald about these material facts" and to "actively conceal" them from him.

The first challenged transaction occurred in July, 1997, when two of EFG's assets were sold to Equis II for, according to the plaintiff, less than fair market value. The first asset was AFG ASIT, which EFG LP sold to Equis II for a demand note of $1.1 million, its "historical cost." The second asset was the class B interests in the AFG trusts. , As a result, Equis II had voting control over the AFG trusts with respect to decisions that AFG ASIT could not accomplish acting alone as managing trustee and required a vote of the beneficiaries. The plaintiff alleges that the defendants never disclosed to MacDonald that he did not have any ownership in Equis II, and that concealment of that material fact, and how it harmed him, was a breach of the fiduciary duty owed to MacDonald.

The second challenged transaction occurred in August, 1998, when EFG LP's interest in AFG Eireann Limited Partnership (AFG LP) and ONC LP was sold to Ariston. EFG LP received stock in Ariston in exchange for the interest in these entities. Engle and Coyne then had Semele purchase the stock in Ariston from EFG LP for $2 million cash and a "non-recourse promissory note of $10,450,000."

The plaintiff also alleges that the defendants misled MacDonald and concealed from him material facts about the ownership of Equis II in EFG's 1996 and 1997 consolidated financial statements. Specifically, the plaintiff alleges that "Equis II was described as a 'corporation formed for the purpose of holding the Class B Interests' of the Trusts and as an 'Affiliate' of [EFG]," and that this description is misleading because "the same description [was] given to various entities which were owned in whole or in part by EFG LP and/or by Engle and MacDonald personally."

C. Engle's fiduciary duty to MacDonald. The plaintiff alleges that Engle had a fiduciary duty to share in future business investments on a "50/50" basis with MacDonald. Specifically, the plaintiff alleges MacDonald "held reasonable expectations that he would participate on a 50/50 basis [ ] with Engle ... in any business or entity which arose out of the business, assets and opportunities of and arising out of [EFG]." The plaintiff also alleges that MacDonald had an expectation "that new and other entities would be created and used for the development of the businesses, assets and opportunities of and arising out of [EFG] and that [he] would ultimately have a direct or indirect interest in all such entities with Engle on a '50/50 basis' with Engle in control." These expectations were based on the "special relationship of trust and confidence" that MacDonald placed in Engle.

3. Motion for summary judgment -- facts. We recite the undisputed facts in the light most favorable to the plaintiff as the nonmoving party. Dattoli v. Hale Hosp., 400 Mass. 175, 178 (1987).

The plaintiff submitted several affidavits in support of her opposition to summary judgment. One of those affidavits states that on December 28, 1999, MacDonald had a conversation with his tax accountant, Erdekian, during which MacDonald told Erdekian "words to the effect that [MacDonald] was supposed to be part of Equis II and [that] he would be part of it going forward." The plaintiff's affidavit states that she never saw "any communication or document which informed" MacDonald that assets were being sold or transferred to entities in which MacDonald had no interest, and that she believes that MacDonald would have told her had he received any such document. She further avers that MacDonald prepared a 2003 document showing his investments in 2000 - 2002, setting forth a continuing interest in "the Equis Financial Group and related entities, ... the AFG Investment Trusts, AFG Income Fund, ... AFG International LP, Kirkwood Mountain Resort, Echelon International, Kettle Valley and PLM International."

Likewise, Thomas Bergstrom, who lived with MacDonald and the plaintiff from 2004 forward, avers that MacDonald throughout that period stated on a number of occasions "the specific properties or interests which he owned with Gary Engle in the business including PLM. The properties and interests he mentioned most of all were AFG, Equis and PLM. He also mentioned their ownership of the AFG Income Fund, Durango, AFG International, Kirkwood, Echelon, and Kettle Valley as well as others."

The defendants submitted detailed affidavits in support of their motion for summary judgment. We set out here only those portions that are both based on admissible evidence and about which there is no dispute.

On December 31, 1999, in response to his request, MacDonald was sent an ownership summary of all Equis entities from Engle's attorney, Craig Mills. The plaintiff does not dispute that MacDonald requested this summary; nor does the plaintiff dispute that Mills mailed it to MacDonald on December 31, 1999. The plaintiff does not contend that the ownership summary is inaccurate or incomplete, nor does she contend it does not reflect the ownership of all of the Equis-related entities as MacDonald requested. The ownership summary showed, among other things, that: (1) Engle had sole control of Ariston; (2) MacDonald had no ownership interest in Equis II; and (3) MacDonald had no controlling interest in Semele.

At some time during 2003 - 2004, Thomas Goodwin and MacDonald had a conversation during which MacDonald asked "why he did not have any ownership in Semele Group, Inc., EFG/Kettle Development or EFG Kirkwood." Goodwin informed MacDonald that "these transactions required outside equity" that Engle and Coyne provided outside of EFG LP. Goodwin "routinely" provided MacDonald with "balance sheets that indicated what assets he owned (through GDE Acquisition Limited Partnership and EFG LP)," which, according to Goodwin, precludes the possibility for MacDonald "to believe that he had an interest in Equis II, Semele, or PLM." Goodwin also prepared and sent MacDonald GDE LP tax returns that were based on GDE LP audited financial statements prepared for the years 1998 and 1999. These financial statements "disclose details regarding the Class B Interests" in the AFG trusts, "the Ariston Corporation transaction, [and] EFG LP's sale of the special beneficiary interest to Semele." In addition, Goodwin and MacDonald had a conversation in which MacDonald said "he was not interested in participating" in the "Equis II Class B Interests transaction ... given the economics of the transaction." According to Goodwin, "EFG LP received 100 [percent] of the value of the assets in these transactions since the sale prices were set sufficiently high so that EFG LP was entitled to, and did, receive all the cash flow from the assets it sold to Semele."

In addition to receiving financial documents, "MacDonald attended numerous board meetings each year, both in Florida and Colorado, where Gary Engle, Wayne Engle, Thomas Goodwin, [Coyne], and others would discuss the status of [the challenged] projects." MacDonald "served as a director (and for many years, President) of AFG ASIT Corporation, the managing trustee of the AFG Investment Trusts" and, as a director, MacDonald was well aware of the challenged transactions involving the AFG trusts, because he "often signed SEC filings disclosing details about the transactions." Moreover, MacDonald and the plaintiff, as "unit holders of AFG Investment Trust A and D," received annual reports of those trusts and the "proxy materials which were sent to all unit holders." The "proxy statement sent to unit holders of AFG Trust D, ... dated February 11, 2003, describes the 2000 acquisition of PLM by the AFG Trusts, the formation of EFG Kirkwood LLC by the AFG Trusts and Semele, and the formation of EFG/Kettle Development LLC by the AFG Trusts and Semele." This proxy statement also specifically states that "Semele is the owner of Equis II Corporation, which in turn is the owner of the Managing Trustee of the Trust," and it provides that "Engle and Coyne control a majority of interest in Semele and, through Equis II Corp., 99.61 [percent] of the Class B Interests." MacDonald was also sent an annual report, dated December 31, 1998, which "discloses that EFG LP transferred its Class B Interests and its ownership of AFG ASIT Corporation to Equis II."

Discussion. 1. Summary judgment. The judge granted summary judgment in favor of the defendants with respect to the "[p]laintiff's claims arising from the sale of business assets to Equis II ... and to Semele" because such claims are barred under the three-year statute of limitations period. This ruling rested on the judge's finding that the undisputed material facts demonstrate that MacDonald had knowledge of these transactions by January, 2000, at the latest. The plaintiff challenges that finding, arguing that the judge applied a constructive knowledge standard rather than an actual knowledge standard.

We review the allowance of a motion for summary judgment de novo. Targus Group Intl., Inc. v. Sherman, 76 Mass. App. Ct. 421, 428 (2010). In doing so, we "work[ ] from the same record as the motion judge" and determine "whether the evidence, viewed in the light most favorable to the losing party, establishes all material facts and entitles the successful party to a judgment as a matter of law." Ibid.

The three-year statute of limitations period for a breach of fiduciary duty claim is triggered by the claimant's actual knowledge of the action that constituted the alleged violation, and not by the claimant's knowledge of the harm that the action caused. See Doe v. Harbor Schs., Inc., 446 Mass. 245, 256-257 (2006). See also Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 518-519 (1997). The critical determination in the instant summary judgment context is whether, as a matter of law, we can identify the point at which MacDonald had actual knowledge that he did not have ownership interest in Equis II and Semele. We conclude that we can and that point occurred -- at the latest -- in January, 2000, when Attorney Mills sent MacDonald the requested ownership summary. Further, the record shows that the plaintiff failed to provide any evidence that would dispute that: (1) MacDonald requested the ownership summary in December, 1999; (2) Attorney Mills sent MacDonald the ownership summary on December 31, 1999; and (3) the ownership summary fully apprised MacDonald that he had no ownership interest in Equis II or Semele.

"The mailing of a letter properly addressed and postpaid does not merely create a presumption but rather constitutes prima facie evidence of delivery to the addressee in the ordinary course of mail." Hobart-Farrell Plumbing & Heating Co. v. Klayman, 302 Mass. 508, 509 (1939) (citations omitted). See Commonwealth v. Crosscup, 369 Mass. 228, 239 (1975) ("Proper mailing of a letter is 'prima facie evidence' in civil cases of its receipt by the addressee"). "We assume that, ordinarily, people who receive a letter addressed to themselves," especially a letter that they requested from their attorney, "will read that letter and therefore be apprised of its contents." State v. Quenzer, 112 Idaho 756, 758 (1987). See Meagher v. International Assn. of Machinists & Aerospace Wkrs. Pension Plan, 856 F.2d 1418, 1423 (9th Cir. 1988) (every time claimant received paycheck, he was charged with knowledge of transaction that constituted alleged violation of ERISA, and, thus, statute of limitations was triggered upon receipt).

In order for the plaintiff to have survived summary judgment based on the three-year statute of limitations, she needed to have filed her claims arising out of the challenged business transactions no later than January, 2003. The plaintiff filed the complaint on August 17, 2015. Her claims are therefore time barred.

2. Motion to dismiss. "In reviewing the allowance of a motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), [365 Mass. 754 (1974),] we proceed de novo and consider the same pleadings as the motion judge." Baker v. Wilmer Cutler Pickering Hale & Dorr LLP, 91 Mass. App. Ct. at 842. "In doing so, we accept as true all factual allegations in the complaint and draw any reasonable inferences therefrom in the plaintiff['s] favor." Ibid. "The ultimate inquiry is whether the plaintiff[ ] alleged such facts, adequately detailed, so as to plausibly suggest an entitlement to relief." Ibid. The plaintiff maintains that the judge erred in dismissing her remaining claims, i.e., that Engle breached his fiduciary duty to share all future business opportunities with MacDonald as "50/50 partners." The plaintiff argues that the judge erroneously disregarded § 8.6 of the partnership agreements when concluding that § 15.15 of such agreements expressly provides that the defendants could engage in other business ventures.

Section 15.15, titled "Other Business Ventures," of the partnership agreements reads:

"Any Partner may engage independently or with other Persons in other business ventures of every nature or description including without limitation the ownership, operation, management, syndication, sale, brokerage, and development of equipment leasing, real estate, and venture capital projects and any other projects in businesses in which the Partnership is then engaged (including competing projects). Neither the Partnership nor any other Partner shall have any rights in or to such independent ventures or the income or profits derived therefrom." (Emphasis supplied.)

Section 8.6 of the agreements reads:

"Notwithstanding anything else in this Agreement to the contrary, the General Partner may not unless it is Approved by the Partners: [A] Sell, exchange or otherwise transfer any asset of the Partnership to an Affiliate of the General Partner."

"[A]pproved by the Partners" is defined in article XVI of the partnership agreements as meaning "previously approved or consented to in writing by all Limited Partners." The plaintiff's claim that Engle had a fiduciary duty to share future business investments on a "50/50" basis with MacDonald is in direct conflict with the express provisions of the partnership agreements, including § 8.6.

The plaintiff maintains that Engle breached § 8.6 of the partnership agreements because written authorization of the sale of EFG LP's assets to Equis II and then later to Semele has neither "been produced or has ever been alleged to exist." However, contrary to the plaintiff's argument, MacDonald did in fact provide written authorization of these transactions. MacDonald filed with the United States Security and Exchange Commission Form 10-Ks that he signed on March 31, 1998, March 31, 1999, and March 30, 2000. Each Form 10-K details the sale of EFG LP's assets to Equis II. For instance, the March 31, 1998, Form 10-K provides, in pertinent part, that "EFG transferred its Class B Interests to a special-purpose company, Equis II Corporation, a Delaware corporation. EFG also transferred its ownership of AFG ASIT Corporation, the Managing Trustee of the Trust, to Equis II Corporation." The March 31, 1999, Form 10-K provides the same, that "EFG ... transferred its ownership of AFG ASIT Corporation, the Managing Trustee of the Trust, to Equis II Corporation," and it indicates that Equis II owns 99.61 percent of the class B interests in the AFG trusts. The March 30, 2000, Form 10-K similarly provides that:

"EFG transferred its Class B Interests to a special-purpose company, Equis II Corporation, a Delaware corporation. EFG also transferred its ownership of AFG ASIT Corporation, the Managing Trustee of the Trust, to Equis II Corporation. As a result, Equis II Corporation has voting control of the Trust through its ownership of the majority of the Trust's outstanding voting interests, as well as its ownership of AFG ASIT Corporation."

All three Form 10-Ks state that "AFG ASIT Corporation is a wholly owned subsidiary of Equis II Corporation," and that "Equis II Corporation is controlled by EFG's President and Chief Executive Officer, Gary D. Engle."

We would be hard pressed to hold that MacDonald's signature on these Form 10-Ks, in his capacity as "President and a Director of the Managing Trustee" of AFG ASIT, does not satisfy § 8.6 of the partnership agreements requiring written approval of the sale. Because Engle did not breach his fiduciary duty in selling these assets to Equis II, we need not reach whether the later sale of these assets from Equis II to Semele was a breach of Engle's fiduciary duty, as MacDonald had no ownership interest, or even managerial role in, Equis II.

Judgment affirmed.

      For ease of discussion, we refer to this motion as two separate motions.

      Geoffrey Alan MacDonald will hereinafter be referred to as MacDonald. MacDonald died in December, 2012.

      We assume what the judge and the parties meant by "a fiduciary duty [between Engle and MacDonald] to share future business opportunities ... as '50/50' partners" was that Engle owed MacDonald a fiduciary duty based on their alleged oral agreement. On that point, the judge concluded that "any such oral agreement was superseded as a matter of law by the written partnership agreement that MacDonald and Engle both signed."

      In addition to these three claims of error, the plaintiff claims the judge erred in denying her motion for discovery because she made the threshold showing necessary to obtain further discovery. See E.A. Miller, Inc. v. South Shore Bank, 405 Mass. 95, 100 (1989). As this fourth claim of error is resolved by our conclusions on the other three claims, we address it after our disposition of those claims. See note 25, infra.

      Erdekian was MacDonald's tax accountant.

      The alleged "50/50 partners[hip]" was based on an alleged oral agreement between MacDonald and Engle. This alleged oral agreement did not represent the actual reality of the EFG ownership. MacDonald had 49.5 percent ownership and Engle had 51 percent ownership.

      MacDonald was EFG's chairman. Engle was EFG's president and chief executive officer. The defendants, James A. Coyne and Wayne E. Engle, were EFG's senior vice presidents.

      EFG LP and the AFG trusts were among the core assets of EFG.

      MacDonald and Engle both had a 49.5 percent ownership interest.

      Coyne was Semele's chief operating officer, Engle was a member of Semele's board, and EFG LP had the right to nominate members of the board. Engle later became Semele's chairman and chief executive officer, and Coyne became Semele's president.

      This demand note was made out to EFG LP, thereby giving "the power to make demand on it [to] Engle himself, who was in control of EFG LP."

      The AFG trusts were controlled by AFG ASIT. AFG ASIT was a wholly owned subsidiary of EFG LP. EFG LP was ninety-nine percent owned by GDE LP and one percent owned by Equis. GDE LP was equally owned by Engle and MacDonald. Equis was solely owned by Engle.

      At this time, the trusts had raised a total of approximately $173 million.

      Ownership (and thus voting control) of the class B interests of the four AFG trusts was originally with EFG LP.

      The general partners of AFG LP and ONC LP were Massachusetts corporations that Engle controlled.

      Goodwin was MacDonald's tax advisor and tax preparer from 1996 to 2001. He was also tax advisor and tax preparer to Engle, Coyne, Wayne E. Engle, and for various entities, including EFG LP.

      The annual reports were sent to all AFG trust D unit holders.

      A breach of fiduciary duty claim is subject to a three-year statute of limitations period. See G. L. c. 260, § 2A ; Doe v. Harbor Schs., Inc., 446 Mass. 245, 254 (2006).

      For the purpose of summary judgment, we acknowledge that the plaintiff submitted affidavits that, in general terms, can be read to raise an issue of fact whether MacDonald appreciated the import of the ownership summary dated December 31, 1999. But it does not logically follow that he did not have actual knowledge of the ownership summary and its contents.

      "[W]hile receipt does not necessarily prove knowledge, receipt ... is closely related to the element of knowledge. ... Some courts have held that in certain circumstances actual notice is synonymous with knowledge. Jefferson County Bank v. Erickson, 188 Minn. 354 (1933)." State v. Quenzer, 112 Idaho 756, 758 (1987).

      We need not consider Erdekian's affidavit and alleged business records. Erdekian's conversation with MacDonald on December 28, 1999, occurred before Attorney Mills sent MacDonald the ownership summary. Even if MacDonald, for arguments sake, did not have actual knowledge of his ownership interests at the time he spoke with Erdekian, he is later charged with actual knowledge when he received Attorney Mill's ownership summary. We, thus, decline to reach whether Erdekian's telephone notes qualify as a business record.

      A Form 10-K is an annual report that publicly traded companies are required to file with the United States Securities and Exchange Commission each year. It provides a comprehensive summary of a company's finances. Because these documents are "matters of public record," we are allowed to consider them in reviewing the defendants' motion to dismiss. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).

      Because we are affirming the order allowing the defendants' motion to dismiss or, in the alternative, for summary judgment, it likewise follows that the denial of the plaintiff's motion for discovery was proper.


source: Caselaw Access Project

license: Public Domain

text:
    Carleton MACDONALD v. Max J. MAHONEY.
    17-P-1154
    Appeals Court of Massachusetts.
    Entered: August 7, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   We interpret the plaintiff, Carleton MacDonald, to be appealing from the order denying his motion for relief from judgment, pursuant to Mass.R.Civ.P. 60(b)(1), 365 Mass. 828 (1974) ( rule 60 [b] motion). On appeal, MacDonald argues that the judge abused her discretion in denying his rule 60(b) motion because he submitted sufficient evidence to show that his legal malpractice claim against his former attorney, defendant Max J. Mahoney, has merit. We affirm.

Background. On April 11, 2016, MacDonald filed a legal malpractice complaint against Mahoney in Superior Court. After a stipulation to an extension of time, Mahoney filed an answer to MacDonald's complaint on July 13, 2016. On August 9, 2016, Mahoney served MacDonald with interrogatories and a request for production of documents. The deadline for MacDonald to respond to Mahoney's interrogatories was September 26, 2016. On October 5, 2016, Mahoney sent MacDonald an electronic mail message stating, "I believe that your discovery responses are overdue?" MacDonald responded, "You may be right. Thanks for the heads up."

On October 20, 2016, MacDonald responded to Mahoney's document request and produced approximately 1,900 pages of documents, but no interrogatory answers were provided. That same day, Mahoney served MacDonald with a final request for answers to the interrogatories. The parties thereafter agreed to an extension, which gave MacDonald until November 22, 2016, to file his answers to Mahoney's interrogatories. On November 30, 2016, Mahoney filed an application for final judgment, pursuant to Mass.R.Civ.P. 33(a), as appearing in 436 Mass. 1401 (2002). The motion judge ordered the entry of judgment in favor of Mahoney, and judgment entered on December 14, 2016.

Five days later, MacDonald filed a motion to vacate the default judgment. After a hearing on January 25, 2017, the motion judge denied MacDonald's motion to vacate the default judgment, stating that MacDonald "has submitted no evidence of a meritorious claim." On March 6, 2017, MacDonald filed his rule 60(b) motion, requesting the motion judge to revisit the denial of his motion to vacate the default judgment. MacDonald attached a supplemental affidavit and an expert report to his rule 60(b) motion. The supplemental affidavit provided, in pertinent part:

"The ... case is considered meritorious because the liability in the case involves a lawyer having failed to file a Statement of Claim with FINRA, (the Financial Industry Regulatory Authority) with its binding arbitration proceedings, and its six year eligibility rule, Rule 12206, within the time required to sustain a claim. Rule 12206 required filing the arbitration claim within six years of the purchase date of the investments, in most instances. [Mahoney] failed to do so."

The expert report provided an assessment of "investments made for [MacDonald] from May 2006 to June 2009." It also provides an "estimate [of] the damages suffered by [MacDonald] as a result of mismanagement of the investment portfolios by Merrill Lynch and Morgan Stanley."

Mahoney responded to MacDonald's rule 60(b) motion, disputing MacDonald's interpretation of the statute of limitations period for a FINRA claim and asserting that the limitations period has not yet run for MacDonald's claims.

On March 15, 2016, the motion judge denied MacDonald's rule 60(b) motion, holding that:

"[MacDonald] has still not submitted any evidence of a meritorious claim, while the summary of an expert's report, as well as the expert's impressive C.V. go to the issue of potential damages in the underlying securities case it does not address the standard of care in the legal malpractice case at issue herein."

Discussion. We review the denial of a motion for relief from judgment for an abuse of discretion. See Stephens v. Global NAPs, 70 Mass. App. Ct. 676, 684-685 (2007). Rule 60(b)(1)"permits a judge of the Superior Court to relieve a party from the effect of an otherwise final judgment for reasons of 'mistake, inadvertence, surprise, or excusable neglect.' " Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 429 (1979). In Berube, this court articulated six factors to guide a motion judge's disposition of a rule 60(b) motion:

"(1) whether the offending party has acted promptly after entry of judgment to assert his claim for relief therefrom; (2) whether there is a showing either by way of affidavit, or otherwise apparent on the record, that the claim sought to be revived has merit; (3) whether the neglectful conduct occurs before trial, as opposed to during, or after the trial; (4) whether the neglect was the product of a consciously chosen course of conduct on the part of counsel; (5) whether prejudice has resulted to the other party; and (6) whether the error is chargeable to the party's legal representative, rather than to the party himself; for 'the courts have been reluctant to attribute to the parties the errors of their legal representatives.' "

Id. at 430-431 (citation omitted).

MacDonald argues on appeal that "all of the Berube factors weighed heavily toward granting [his] [r]ule 60[ (b) ] motion." We disagree. While MacDonald may have satisfied some of the Berube factors, his rule 60(b) motion and attached documents fail to set forth any information that would show that his legal malpractice claim against Mahoney is meritorious.

MacDonald's rule 60(b) motion and accompanying documents are void of even the basic information on his legal malpractice claim, such as the acceptable standard of care and how Mahoney breached such standard. Rather, MacDonald's rule 60(b) motion and accompanying documents focus on his claim with FINRA and the damages he might have received in that action. We agree with the motion judge that such information on MacDonald's underlying FINRA claim is futile in showing how his present legal malpractice claim has merit. Additionally, MacDonald failed to provide information that would constitute excusable neglect for missing both the original interrogatory deadline of September 26, 2016, and the extended interrogatory deadline of November 22, 2016. We, thus, see no abuse of discretion in the motion judge's decision to deny MacDonald's rule 60(b) motion.

Order denying motion for relief from judgment affirmed.

      The notice of appeal states that the plaintiff "appeals this matter to the Appeals Court from the Judgment after denial of the Plaintiff's Motion for Relief From Judgment." The notice of appeal is untimely as to the judgment.

      Mahoney was retained as MacDonald's legal counsel after he discovered that he might have a potential Financial Industry Regulatory Authority (FINRA) claim against his former brokers. MacDonald filed the instant legal malpractice suit against Mahoney because, according to MacDonald, the statute of limitations for filing a FINRA claim ran during the course of Mahoney's legal representation of MacDonald. MacDonald asserts that his FINRA claims are barred by the statute of limitations because more than six years has passed since the last transaction involving the securities at issue. Mahoney disputes that the statute of limitations has run for MacDonald's FINRA claim and asserts that the claim is still viable until sometime in 2019. FINRA rule 12206 provides, in pertinent part, "No claim shall be eligible for submission to arbitration under the Code where six years have elapsed from the occurrence or event giving rise to the claim. The panel will resolve any questions regarding the eligibility of a claim under this rule." MacDonald has yet to attempt to file a claim with FINRA which, according to rule 12206 would "resolve any questions regarding the eligibility of a claim," e.g., whether the limitations period has run.

      While information regarding the FINRA claim will eventually be pertinent in the legal malpractice case, such information, alone, does not indicate the legal duty Mahoney owed to MacDonald or how Mahoney breached such duty.


text:
    COMMONWEALTH v. Daniel R. GAUVIN.
    17-P-515
    Appeals Court of Massachusetts.
    Entered: August 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant was convicted of two counts of indecent assault and battery, G. L. c. 265, § 13H, and one count of indecent assault and battery on a child, G. L. c. 265, § 13B. On appeal, the defendant's sole claim is that he was denied a fair trial because the judge failed to conduct a voir dire after two jurors reported having difficulty hearing the victim's testimony. We affirm the convictions.

1. Background. On the first of the two-day trial, the Commonwealth presented the testimony of the victim and the investigating detective. At the conclusion of the victim's testimony, the jury took a recess for lunch. Prior to resuming the Commonwealth's case, the judge addressed the jurors:

COURT : "Was there somebody on the jury that had a little difficulty hearing? All right. Two people? All right. How bad is it? I mean can you make it out or is it too difficult for you to hear, sir?"
JUROR : "Part of it was just sight and, when I could see her, it was easier to hear but she was real quiet."
COURT : "How about you, sir?"
JUROR : "Same thing. I couldn't hear -- it was the volume wasn't high enough when she spoke."

After listening to the two jurors explain the problem, the judge moved one juror to a seat closer to the bench and asked the attorneys to be mindful not to block the jurors' view of the witnesses. The judge also asked that the jurors raise a hand if they experienced any difficulty hearing. The parties did not object or request any further action. There was no indication that the jurors were troubled in their ability to perform their function.

2. Discussion. Where a judge receives reliable information suggesting that a juror may be inattentive, he " 'must take further steps to determine the appropriate intervention. ... Typically, the next step is to conduct a voir dire of the potentially inattentive juror, in an attempt to investigate whether that juror remains capable of fulfilling his or her obligation to render a verdict based on all of the evidence.' The judge has 'substantial discretion in this area,' and on appeal, '[t]he burden is on the defendant to show that the judge's response' " was arbitrary or unreasonable. Commonwealth v. Villalobos, 478 Mass. 1007, 1008 (2017), quoting from Commonwealth v. McGhee, 470 Mass. 638, 644 (2015).

Here, the judge did conduct a voir dire of each juror who indicated difficulty in hearing the victim's testimony. Brief though it was, the judge's inquiry was aimed at determining the extent of the jurors' difficulty: "How bad is it?" The first juror did not indicate that he had missed any testimony; rather, he stated that it had been difficult for him to hear. The second juror chimed in that it was the "same thing" for him. Although this juror began to say that he "couldn't hear," he rephrased and stated that the volume wasn't high enough.

Although further questioning may have clarified the situation somewhat, the tenor of both jurors' remarks indicated that they wanted to inform the judge of their difficulty so that it could be remedied going forward, not that they faced a current dilemma in that they missed significant portions of the victim's testimony. Contrast McGhee, 470 Mass. at 642 (claim was that juror was "sound asleep through most of the afternoon trial"); Villalobos, 478 Mass. at 1008 (claim was that one juror "had fallen asleep several times during testimony" and another juror was "sound asleep").

The fact that both parties were satisfied with the judge's prospective measures supports the view that the jurors' responses did not signal a serious issue. Much may have been conveyed in nonverbal communication, which is one of the reasons that we defer to the trial judge, who had an opportunity to observe the jurors' responses first hand. See Commonwealth v. Lao, 443 Mass. 770, 777 (2005) (describing judge who has opportunity to "observe firsthand the demeanor of each prospective juror," as being in best position to determine impartiality). The judge's decision to conduct a brief voir dire of the jurors and then to let the trial continue while rectifying the situation prospectively was neither arbitrary nor unreasonable.

Judgments affirmed.

      The judge withdrew from the jury's consideration a third count of indecent assault and battery, and the jury acquitted the defendant of witness intimidation.

      We recognize that the issue in this case was not, strictly speaking, "inattentiveness," however, both parties have used this analytic framework, and a more analogous one has not been suggested to us.


text:
    COMMONWEALTH v. William ROCHA.
    17-P-413
    Appeals Court of Massachusetts.
    Entered: August 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, William Rocha, was convicted of operating a motor vehicle with a suspended license, G. L. c. 90, § 23. The sole issue presented on appeal is whether the defendant's right to confront the witnesses against him was violated where the only evidence admitted at trial proving that the defendant had notice that his license was suspended consisted of a registry of motor vehicles certificate showing the dates on which the certificate was created by the registry and on which it was received by the United States Postal Service. In Commonwealth v. McEvoy, 93 Mass. App. Ct. 308, 311-317 (2018), decided after the oral argument in this case, this court held that the defendant's confrontation rights were not violated where the Commonwealth relied solely on the same type of registry certificate as the one in the case before us to prove that the defendant received notice that his license was suspended. For the reasons stated in McEvoy, supra, the defendant is not entitled to relief from his conviction for operating a motor vehicle with a suspended license.

Judgment affirmed.

      The defendant was found not guilty of operating a motor vehicle under the influence of liquor, G. L. c. 90, § 24(1)(a )(1).


text:
    COMMONWEALTH v. Glaciris HIDALGO.
    17-P-539
    Appeals Court of Massachusetts.
    Entered: August 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following trial in the Superior Court on an indictment charging trafficking in heroin, a jury convicted the defendant of the lesser included offense of possession with intent to distribute, in violation of G. L. c. 94C, § 32. On appeal, the defendant argues that the Commonwealth's proof was insufficient to support the conviction. For the reasons that follow, we affirm the conviction.

1. Evidence. We recite the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (Latimore ). Commonwealth v. Pratt, 407 Mass. 647, 649 (1990).

a. Investigation. In December, 2014, the defendant lived in the first-floor apartment at 192 Adams Street in the Dorchester section of Boston, with her husband, Armando Figueroa Morales; her adult (autistic) son; and her brother. During that same month, the Massachusetts State police commenced an investigation of suspected drug dealing from the defendant's apartment. Police surveillance was established, which revealed a high level of short duration visits by persons, who came (by foot or vehicle) to the apartment and then left after no more than a few minutes.

On December 11, the police conducted a trash pull at the target location. This search yielded "dozens" of plastic sandwich bags with the corners cut off; two digital scales; prescription bottle in the name of Armando Figueroa Morales; a Children's Hospital visitor identification badge in the name of Jocelyn Figueroa; and papers addressed to 192 Adams Street. The next day, the police obtained a search warrant.

On the morning of December 15, with the warrant in hand, the State police arrived at the defendant's home. Initially, at 10:55 A.M. , the police observed Morales leave the apartment and walk toward the intersection of Adams Street and Dorchester Avenue. Two troopers, who had been stationed inside a vehicle at this intersection, then stepped outside and approached Morales, patted him down, felt some bulky items in his pants pockets, and retrieved from one pocket five plastic twist bags, each containing heroin, with their combined weight amounting to 38.55 grams. The troopers arrested Morales and transferred his custody to other troopers nearby. Moments later, another team of State troopers executed the search warrant for the apartment.

b. Search. Using a key provided by Morales to gain entry into the apartment, troopers knocked on the door, announced police presence, and declared that they were executing a search warrant. Once they were inside, troopers observed the defendant, dressed in a nightgown, sitting at a table in the kitchen. The defendant identified herself as "Jocelyn Figueroa," but police later determined that her true name was Glaciris Hidalgo.

i. Kitchen. In plain view, directly in front of the defendant on the kitchen table, was a plastic bag containing a powdery substance. Testing disclosed that the bag held 4.80 grams of heroin. Next to this bag of heroin was a wallet that held, in addition to cash, two plastic bags, each containing heroin, the combined weight being 1.36 grams. In sum, the defendant was sitting within arms' reach of 6.16 grams of heroin in three plastic twist bags.

Items commonly used to weigh, package, and sell heroin were found in the kitchen. Specifically, (a) on the kitchen floor, no more than two feet from where the defendant was sitting, a closed backpack held a working digital scale and a prescription bottle under the name "Gregorio Delone"; (b) an open box of plastic sandwich bags was either on a kitchen counter or cupboard; and (c) two cellular telephones (cell phones) and a cordless telephone were out in the open on the kitchen table.

The police did not find a weapon or contraband on the defendant herself. The police advised the defendant of her Miranda rights and placed her under arrest. The police also came upon the defendant's son, and her brother, in the two front (smaller) bedrooms. The son became distraught because of the sudden police presence in the home, and given his formidable size, the scene at the outset was somewhat chaotic until police were able to calm him. A search of the remainder of the apartment then commenced.

ii. Marital bedroom. Troopers searched a bedroom, which, by all indications, appeared to be the marital bedroom. It was the largest of the bedrooms; had a closet containing clothes for a female and male; and had the largest bed. Between the mattress and the box spring, police found a blue pen cap that contained a small plastic bag with what was later determined to be cocaine. The bedroom had personal effects of the defendant and a "pack-and-play" with children's clothes. In or near a nightstand, police found several cell phones. In another nightstand, being used as a television stand, the police found cash ($4,100) hidden underneath the bottom drawer.

Also, inside or on top of a dresser, the police found cell phones, digital cameras, a notebook, and a purse. The notebook had loose papers as well as one page, with handwriting, listing names, numbers, and dollar signs. The purse contained scraps of paper with pin numbers and the names of third parties; two Boston Children's Hospital visitor's badges, both dated December 14, 2014, one in the name of "Joselin Figueroa" and the other for one Gregoria Deleon; and a debit card (with expiration date, "09/18") in the name of Armando Figueroa Morales.

2. Discussion. At trial, the defendant did not contest the fact that she had knowledge of the heroin found in the apartment and that she then had the physical ability to exercise control over the heroin. She claimed, however, that there was insufficient evidence of her intent to exercise dominion and control over the heroin, and on that basis, at the close of the Commonwealth's case, defense counsel moved for a required finding. Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). The judge denied the motion and submitted the case to the jury.

a. Possession. The defendant was convicted of possession of a controlled substance, heroin, with intent to distribute it, a crime that has three elements: (i) possessing a controlled substance, (ii) knowingly and intentionally, (iii) with the specific intent to distribute it. Commonwealth v. Lezynski, 466 Mass. 113, 118 (2013). Possession may be actual or constructive, joint or exclusive. Constructive possession means "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Deagle, 10 Mass. App. Ct. 563, 567 (1980). See Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). The Commonwealth was not obligated to prove that the defendant was physically holding the heroin.

That said, mere presence in an area of a shared apartment where drugs are found cannot prove constructive possession. There must be additional incriminating evidence linking the defendant to the heroin. Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008). Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 149 (1999). Similarly, a person's mere association with a known drug dealer, in and of itself, is not enough to permit an inference of drug possession. Commonwealth v. Booker, 31 Mass. App. Ct. 435, 437 (1991). This was not a situation, however, of mere presence or association. Several interlinked pieces of incriminating evidence, brought out by the Commonwealth at trial, in combination, permitted an inference of the defendant's intent to control the heroin.

b. Additional incriminating evidence. The defendant was not a mere bystander. She lived in the apartment, "a relevant inculpatory factor to be considered" by the trier of fact. Commonwealth v. Handy, 30 Mass. App. Ct. 776, 781 n.3 (1991). See Commonwealth v. Rarick, 23 Mass. App. Ct. 912, 912 (1986). The fact that the defendant was sitting alone at the kitchen table, directly in front of and within arms' reach of a bag of heroin, bears on intent to exercise control. Commonwealth v. Monson, 57 Mass. App. Ct. 867, 870 (2003). A backpack holding a digital scale, a common tool of the drug trade, was close by her feet. An open box of plastic bags, commonly used for packaging heroin, was out in the open in the kitchen.

In the master bedroom, the contents of a purse suggested drug dealing. The purse held an EBT card in the name of a third party as well as scraps of paper with names, including the EBT card owner, monetary amounts, and pin numbers; these items were found amidst two Boston Children Hospital visitor badges dated December 14, 2014 (i.e., the day before the police search) -- one in the name of "Joselin Figueroa" and another in the name of "Gregoria Deleon" -- and a debit card bearing the name Armando Figueroa Morales. The Commonwealth's expert testified that dealers often accept EBT cards or credit cards as payment for drugs. Also, in the master bedroom was a notebook with names, numbers, and dollar signs, suggestive of a ledger, commonly used by drug dealers, in some form or another, to track "what anybody owes them."

Piece by piece, this inculpatory proof, as a whole, tended to link the defendant to the heroin in her home and suggested that she possessed it for distribution, as opposed to personal use. See Commonwealth v. Rarick, 23 Mass. App. Ct. at 912 ; Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 325 (2010).

Constructive possession is a legal conclusion based on factual inferences rooted in the evidence. "The inferences drawn by the jury from the evidence 'need only be reasonable and possible and need not be necessary or inescapable.' " Commonwealth v. Kelly, 470 Mass. 682, 693 (2015), quoting from Commonwealth v. Longo, 402 Mass. 482, 487 (1988). The Commonwealth is not required to "exclude every reasonable hypothesis of innocence, provided the [evidence] as a whole supports a conclusion of guilt beyond a reasonable doubt." Commonwealth v. Delarosa, 50 Mass. App. Ct. 623, 628 (2000). If, as here, the evidence permits possible conflicting inferences, "it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province." Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007). The defendant's claim of innocence circumvents reasonable inferences that the evidence permitted, by arguing that the evidence (in her view) "tends equally to sustain either of two inconsistent propositions" (i.e., constructive possession of heroin, or not), therefore, "neither one can be said to have been established by legitimate proof." Berry v. Commonwealth, 393 Mass. 793, 796 (1985). See Commonwealth v. Fancy, 349 Mass. 196, 200 (1965). This is not a case like Commonwealth v. Acosta, 81 Mass. App. Ct. 836, 840-844 (2012), where we concluded that the prosecution's evidence left an essential element (intent to distribute) entirely to speculation or guesswork.

Here, the Commonwealth's evidence established interlinked inferences, from which the jury could reasonably find that the defendant constructively possessed the heroin with intent to distribute it. We conclude that there was no error in denying the motion for a required finding.

Judgment affirmed.

      A second indictment was dismissed with the consent of the defendant.

      The defendant highlights the absence of certain items one might expect within a woman's purse to negate the inference that the purse was currently used by her. While this may be a point in the defendant's favor to be argued to the jury, it is not one that establishes, as a matter of law, that the purse was not hers.

      This name was nearly identical to the name, Gregorio Delone, which was on the prescription bottle in the backpack found close by the defendant, in the kitchen. The hospital badges in the purse further linked the defendant to the backpack and the scale inside, which is a common tool of dealers in the street trade.


text:
    COMMONWEALTH v. Patrick GADWAH.
    17-P-723
    Appeals Court of Massachusetts.
    Entered: August 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Patrick Gadwah, was indicted on charges of rape of a child with force, G. L. c. 265, § 22A, rape and abuse of a child aggravated by age difference, G. L. c. 265, § 23A, and indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B. The defendant was found guilty by the jury of three counts of indecent assault and battery on a child under the age of fourteen. On appeal, the defendant argues that the judge erred in denying his motion to suppress statements he made during an interview with police, on the ground that the statements were involuntary. The defendant also argues that the judge erred in allowing in evidence the testimony of the victim regarding a conversation she had with her mother about the incident. For the following reasons, we affirm.

Background. The jury could have found the following facts. In the fall of 2012, the victim, along with her young cousins, visited the home of the defendant to play with the defendant's children. While there, the group had snacks and played video games together. While the others were playing the video games, the defendant, who was sitting behind the victim, touched her genitals under a blanket. He then forced her to touch his penis. After she and her cousins left the defendant's home, the victim told one of her cousins what had occurred. In January, 2013, the victim told her mother about the incident, which eventually led to the police becoming involved.

Discussion. 1. Voluntariness of interview statements. The judge conducted an evidentiary hearing on the defendant's motion to suppress and heard testimony from a single witness, Detective Megan Pike of the Dracut police department. We accept the judge's findings of fact absent clear error, but review de novo her conclusion that the Commonwealth sustained its burden of proving that the defendant's statements were voluntary. Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 17 (2016).

On February 1, 2013, the defendant was interviewed by Detective Pike and Detective Lieutenant Mellonakos. The detectives conducted the interview at the request of the defendant. The defendant was not in handcuffs, and at no point during the interview was he under arrest. The detectives did not say anything to the defendant that would have led him to believe otherwise. Detective Pike read the defendant his Miranda rights. The judge concluded, and the defendant does not dispute, that he understood and waived these rights. The defendant also requested that the interview not be recorded, and he freely and voluntarily signed a form acknowledging that he waived his right to have the interview recorded.

During the interview, the defendant appeared calm and collected until the detectives began to ask questions regarding his conduct during the day of the incident. The defendant then began to sweat profusely and claimed that he had diabetes. In response, the detectives offered him food and water which he refused, stating that he was "okay." The defendant did not ask to end the interview or ask for medical assistance. After the interview concluded, the defendant left the police station.

Statements are voluntary when they are "the product of a rational intellect and a free will, and not induced by" physical or "psychological coercion." Commonwealth v. Santana, 477 Mass. 610, 617 (2017) (quotation omitted). The defendant does not argue that the detectives employed any physical or psychological coercion during the interview. There was also no evidence to suggest any unfair tactics employed by the detectives to compel the defendant's statements. The defendant instead argues that his physical condition rendered his statements involuntary. The mere fact that a person has suffered a physical injury or has a medical condition that may impact his cognitive functioning does not lead ineluctably to the conclusion that statements he makes to the police are not voluntary. See Commonwealth v. Wills, 398 Mass. 768, 776 (1986) (statement made by defendant suffering from stab wound deemed voluntary). For example, in Commonwealth v. Clark, 432 Mass. 1, 12-13 (2000), the Supreme Judicial Court upheld the trial judge's ruling that statements made by the victim of a gunshot wound to police officers while the victim was treated at the scene by the emergency medical technician were voluntary. In contrast, a statement made by one who "by dint of physical or mental impediments is incapable of withholding the information conveyed" cannot be deemed voluntary. Commonwealth v. Paszko, 391 Mass. 164, 177 (1984).

During the interview, the defendant was calm, maintained eye contact with the detectives, and knew that he could leave at any time. The defendant's mood change occurred only when he was asked about the details of the day of the incident. The defendant's perspiration and statement that he has diabetes alone fail to demonstrate that he was "incapable of withholding the information conveyed." Ibid.

The judge also did not err in denying the defendant's motion to suppress based on the defendant's right to have a recorded interview. Here, the defendant himself requested that the interview not be recorded. See Commonwealth v. Pina, 430 Mass. 66, 69-70 & n.8 (1999).

2. Victim's testimony. During cross-examination, defense counsel presented the victim with questions regarding her knowledge of the type of attention and special treatment the victims portrayed in the television show Law & Order: Special Victims Unit received. This was then followed by counsel's questions regarding the timing between when the victim first told an adult about the incident and when she subsequently moved in with her mother, suggesting a motive for the victim to have made up the allegations. Defense counsel proposed the theory that the victim had purposefully fabricated the incident based on her knowledge and exposure to Law & Order on television. By lying about the incident, the victim would benefit from the attention in ways she had seen on the show, with the ultimate goal of moving out of her great-grandmother's home and in with her mother.

In order to address this theory, the Commonwealth on redirect examination asked the victim questions regarding the conversation she had with her mother about the incident. Defense counsel objected, arguing that the mother was a second complaint witness, in violation of Commonwealth v. King, 445 Mass. 217, 243 (2005), cert. denied, 546 U.S. 1216 (2006).

By introducing the manipulation theory, the defendant "opened the door" to the subsequent questions by the Commonwealth. Commonwealth v. Kebreau, 454 Mass. 287, 299 (2009). The Commonwealth had the right to rebut this theory by establishing that it was the mother who had asked the victim about the incident. By doing so, the Commonwealth was able to provide a "fair and accurate picture" of its case. Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 510 (2009). Furthermore, the judge did not permit the victim to recount the details of the complaint itself. The Commonwealth's questioning of the victim on redirect served only to establish that the victim's mother actively sought the information, in order for the Commonwealth to rebut the defendant's theory that the victim manufactured the allegations so that she could live with her mother. Furthermore, the judge gave the jury a strong limiting instruction prior to the testimony that the upcoming evidence could be considered not for the truth but only for "determining the credibility of this witness on the stand." The jury are presumed to have followed this instruction. See Commonwealth v. Auclair, 444 Mass. 348, 360 (2005).

Judgments affirmed.

      Count two was later dismissed as duplicative.

      The defendant had telephoned four times and visited the police station in order to set up the interview with the detectives.

      The defendant also claims that the trial judge ruled, in limine, that the victim would be precluded from providing such testimony at trial. However, the record makes clear that the trial judge declined to make a ruling on the motion until the relevant testimony was introduced during trial.


text:
    Jessica RICKER & others v. 3353 WASHINGTON LLC & others.
    18-P-270
    Appeals Court of Massachusetts.
    Entered: August 3, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Benjamin Mauer, Jonah Rapino, and Helen Matthews.

      Christine Araujo, Anthony Pisani, Mark Fortune, Craig Galvin, Bruce Bickerstaff, Peter Chin, and Mark Erlich, as they are members of what the complaint terms the "City of Boston Zoning Board of Appeals." The body's legal name is the "board of appeal." St. 1956, c. 665, § 8.

   The plaintiffs appeal from a Superior Court judgment dismissing, for lack of standing and thus subject matter jurisdiction, their challenge to a decision of the Boston board of appeal (the board) granting certain zoning variances to the defendant 3353 Washington LLC (the developer). The complaint sought judicial review under the Boston zoning enabling act (the act), St. 1956, c. 665, § 11, and also asserted that the board's decision constituted "spot zoning" in violation of the plaintiffs' equal protection rights. In a careful memorandum of decision, a judge concluded that the plaintiffs were not "persons aggrieved" under § 11 of the act and thus lacked standing to pursue their claims. We agree and therefore affirm.

The complaint alleged that the plaintiffs are tenants of residential buildings located at 180 and 190 Green Street in the Jamaica Plain section of Boston. The board granted the developer variances in order to build a forty-five unit, 45,286 square foot, six-story mixed use building at 211 Green Street (the locus). Although this is near where the plaintiffs reside, the plaintiffs have conceded that they are not entitled to the rebuttable presumption of aggrievement. See Murrow v. Esh Circus Arts, LLC, 93 Mass. App. Ct. 233, 235 (2018).

The plaintiffs assert that they are aggrieved because the development will cause (1) increased traffic and consequent personal danger to themselves "and other bicyclists" on Green Street; (2) anticipated driving delays due to increased traffic; (3) decreased availability of nearby on-street parking for themselves and their guests; (4) increased density in the vicinity of their residences, changing the character of the street; (5) pressure for increased rents that would leave the plaintiffs "and their neighbors" unable to remain in the neighborhood; and (6) diminution of the rich diversity of race, class, ability, and age in the neighborhood -- diversity that the plaintiffs greatly value, have worked to accomplish, and is a reason they chose to live in the neighborhood.

"We do not read the term 'person aggrieved' narrowly, but the claimed injury or loss must be 'personal to the plaintiff, not merely reflective of the concerns of the community.' " Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52, 54 (2005) (citation omitted). "[A] plaintiff must establish -- by direct facts and not by speculative personal opinion -- that his injury is special and different from the concerns of the rest of the community." Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 132 (1992). See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551, 554 (1999) ; Murrow, 93 Mass. App. Ct. at 235 (aggrievement requires "specialized, cognizable injury").

The plaintiffs have not distinguished their claimed injuries from those that would be suffered by others in the neighborhood; indeed, they expressly allege that some of their injuries would be shared by others generally. Their claimed injuries are not "special and different from the concerns of the rest of the community," Barvenik, 33 Mass. App. Ct. at 132, even if the plaintiffs might experience them to a greater degree than community members who live or work further from the locus. Cf. Murrow, 93 Mass. App. Ct. at 238 (general allegations that plaintiff and neighborhood would be harmed by increased potential for overcrowding, discouraging housing for persons of all income levels, and increased traffic, were insufficient to make plaintiff aggrieved).

In addition, some of the claimed injuries, such as increased rents, are not ones against which the act "is intended to protect, either explicitly or implicitly." 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700 (2012). Relying on Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 722 (1996), the plaintiffs argue that increased traffic and decreased parking availability are concerns protected by the act. But Marashlian did not focus on whether the traffic and parking concerns of the plaintiffs in that case were special and different from the rest of the community. See id. at 722-724. It is on that ground that the plaintiffs' allegations fall short here.

Nor do we accept the plaintiffs' argument that even if they are not "persons aggrieved," they still have standing to assert their spot zoning claim. The plaintiffs base their argument on the principle that:

"for purposes of their standing to challenge local legislation that adopts or amends a zoning ordinance or by-law, it is sufficient for ... plaintiffs to have established that they will suffer an adverse impact from the legislative zoning action, without establishing, in addition, that their injury is special and different from the concerns of the rest of the community."

Van Renselaar v. Springfield, 58 Mass. App. Ct. 104, 107 (2003). This principle applies to local legislation; the plaintiffs cite no case extending it to zoning board of appeal decisions granting variances to particular property owners. When a board of appeal grants a variance or a special permit, it is not reclassifying a parcel; it is exercising quasi-judicial, not legislative power, and its decision cannot be challenged as spot zoning. See Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147, 156-157 (1976) (special permit case).

The plaintiffs ask us to conclude that variances may have sufficient effect on a parcel to amount to a legislative rezoning, thus permitting a spot zoning challenge by any plaintiff who, even if not aggrieved, meets the standing requirement of Van Renselaar. Again, however, they cite no case so holding, and they offer no standard by which to measure how extensive the effect of a variance or variances must be in order to amount to a rezoning and allow such a challenge. If mere dissimilar treatment of similar parcels were enough, then many zoning variances could be challenged as spot zoning. See Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 361 (1973). This would seriously undermine the statutory requirement that a person must be aggrieved in order to challenge a zoning board of appeal's decision.

Judgment affirmed.

      The act's "person aggrieved" requirement is the same as that in G. L. c. 40A, § 17, and, thus, authority under the latter statute is applicable in matters involving the former. See Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass. App. Ct. 274, 275 (1985).

      We have listed the grounds for aggrievement that the plaintiffs pursue in their appellate brief. Their complaint listed additional grounds (or phrased their grounds slightly differently) and they have alluded to other grounds in the "Issues Presented" section of their brief, but the brief does not offer any developed argument on those grounds. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975) (appellate court need not pass on issues not argued in brief).

      The developer suggests that Marashlian, in concluding that a "minimal[ ]" increase in traffic and the loss of "some" parking spaces could constitute aggrievement, 421 Mass. at 723, must be viewed in light of the more recent holding that "[a]ggrievement requires a showing of more than minimal or slightly appreciable harm." Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 121 (2011). We need not resolve this question.

      The defendants also persuasively argue, and the judge agreed, that some of the plaintiffs' alleged injuries are either de minimis, see Kenner, 459 Mass. at 121, or too speculative. See Barvenik, 33 Mass. App. Ct. at 133 ("a plaintiff must ... offer more than conjecture and hypothesis"). We need not reach these additional arguments.

      Because of our conclusion that the plaintiffs lack standing, we need not address their argument that the developer's variance application was itself deficient.


text:
    Robert SARVIS v. Lynn TUCKER.
    17-P-1522
    Appeals Court of Massachusetts.
    Entered: August 13, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Robert Sarvis brought this action against his neighbor, Lynn Tucker, asserting claims of malicious prosecution, intentional infliction of emotional distress, defamation, trespass, and nuisance. A Superior Court judge (first judge) allowed Tucker's motion for summary judgment on the claims of malicious prosecution and nuisance. The other three claims proceeded to trial. After giving Sarvis two opportunities to make an opening statement, a different judge (second judge) allowed Tucker's motion for a directed verdict on all the remaining claims. Sarvis now appeals, arguing both rulings were made in error. We affirm.

The same standard applies to a motion for summary judgment and motion for a directed verdict. See Donaldson v. Farrakhan, 436 Mass. 94, 96 (2002). In both instances "[t]he judge must determine, on viewing the evidence in the light most favorable to the nonmoving party, whether a reasonable inference could be drawn in favor of the nonmoving party, or if the moving party is entitled to a judgment as a matter of law." Ibid. "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Ibid., quoting from Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 252 (1986). On appeal our review is de novo. See O'Brien v. Pearson, 449 Mass. 377, 383 (2007) ; Roman v. Trustees of Tufts College, 461 Mass. 707, 711 (2012).

Malicious prosecution. Sarvis's malicious prosecution claim is based on a complaint that Tucker made to the Nantucket police about Sarvis's barking dog. An officer responded to Sarvis's home, heard the dog barking, and issued Sarvis a violation notice for "Animal Nuisance" in violation of Nantucket by-law § 55-4F. Ultimately, a clerk-magistrate determined that there was no probable cause and found Sarvis "not responsible" for the violation.

To be liable for malicious prosecution, a "defendant must have, in some sense, initiated the prosecution." Correllas v. Viveiros, 410 Mass. 314, 318 (1991). "The mere transmission of information to a police officer, who using his or her independent judgment, then pursues the matter and institutes ... proceedings, has never been held sufficient to support an action for malicious prosecution." Ibid. Here, the summary judgment record contains no evidence that Tucker "intentionally induced" the police to institute proceedings against Sarvis. Ibid., quoting from Tangney v. Sullivan, 163 Mass. 166, 167 (1895). Rather, it establishes only that Tucker complained to the police about Sarvis's dog. The responding officer then investigated the matter and issued Sarvis a citation after she heard the dog barking when she arrived at Sarvis's home.

Sarvis argues that the officer was not exercising her own judgment, as evidenced by the statement in her report that "officers have responded to this home for the same complaint on numerous occasions" and have warned Sarvis that "if police are called to his house again regarding a barking dog then he may be given a by-law citation." But Sarvis disregards the officer's later statement that she issued the citation "because of the complaint and because [she] had heard the dog barking." From this it is evident that the officer used her independent judgment in determining whether to initiate proceedings against Sarvis. Summary judgment on this claim was therefore appropriate. See Correllas, 410 Mass. at 319.

Nuisance. Sarvis's nuisance claim derives from his allegations that Tucker is violating Nantucket zoning laws by operating a beauty salon and boarding house on her property. But "a private plaintiff will be allowed to maintain a public nuisance action" only if he "can 'show that the public nuisance has caused some special injury of a direct and substantial character other than that which the general public shares.' " Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Ct., 448 Mass. 15, 34-35 (2006), quoting from Connerty v. Metropolitan Dist. Commn., 398 Mass. 140, 148 (1986). Sarvis failed to provide evidence that Tucker's activities caused him such an injury. Instead, he relies exclusively on the conclusory allegations of his complaint, which do not suffice to withstand summary judgment. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 645 (2002).

Trespass. Sarvis's trespass claim fails as a matter of law because he cannot establish damages. Sarvis essentially concedes that he has no damages, but argues that proof of damages is not required to make out a claim of trespass. It is true that the absence of damages does not preclude the granting of equitable relief in a trespass action. See, e.g., Cumberland Corp. v. Metropoulos, 241 Mass. 491, 503 (1922). But Sarvis does not allege a continuing trespass; rather, his claim is based on two isolated incidents, occurring about seven months apart, where Tucker allegedly entered his property without permission. He therefore has no plausible entitlement to equitable relief. Indeed, his complaint only requests damages, which he has no reasonable expectation of proving.

Intentional infliction of emotional distress. A directed verdict was appropriate on Sarvis's claim for intentional infliction of emotional distress because he could not prove that he suffered emotional distress that was "severe." Polay v. McMahon, 468 Mass. 379, 385 (2014). As the second judge observed, Sarvis's opening statement offered "not a word" on the issue "other than 'I suffered emotional distress.' " This was insufficient to warrant sending the claim to the jury. Cf. id. at 388 (judge properly dismissed claim of intentional infliction of emotional distress where complaint contained only conclusory statements that the emotional distress was severe).

Defamation. Finally, Sarvis's defamation claim fails as a matter of law. To prevail on a defamation claim, Sarvis had to prove among other things that Tucker's "statement caused economic loss or ... is actionable without economic loss." Scholz v. Delp, 473 Mass. 242, 249 (2015). Sarvis more or less concedes that he suffered no economic loss, but contends that he need not offer such proof because Tucker committed slander per se by accusing him of a crime. In particular, Sarvis contends that Tucker's complaint to the police about his dog was slander per se because Nantucket by-law § 55, under which he was issued a citation, "is criminal in nature."

There is no merit to this argument. Nantucket by-law § 55-5A states that "[t]his chapter may be enforced by a police officer or Animal Control Officer utilizing the noncriminal disposition contained in Chapter 1 of this Code." And again, the citation issued to Sarvis is specifically marked "NON-CRIMINAL." Thus, as the by-law is plainly civil in nature, Tucker did not impute criminal conduct to Sarvis by making the complaint.

Judgments entered September 21, 2017, and October 13, 2017, affirmed.

      We note that Tucker also filed a notice of appeal, but failed to raise any argument regarding that appeal in her brief.

      Although the violation notice is marked "NON-CRIMINAL," this does not defeat Sarvis's malicious prosecution claim. See Hubbard v. Beatty & Hyde, Inc., 343 Mass. 258, 260-261 (1961).

      Sarvis offered only two photographs of vehicles parked outside Tucker's property, but, as the first judge found, he failed to demonstrate "how these vehicles amount to 'excessive' parking or how they impeded traffic."

      Although Sarvis alleged in his complaint that Tucker trespassed on his property and poisoned his dog, the second judge allowed Tucker's motion to preclude any evidence or argument relating to the alleged poisoning. On appeal, Sarvis has not made any argument regarding that ruling.

      Sarvis argues that the jury could have found that Tucker's actions were the cause of his becoming ill and having to go to the hospital. But the second judge, finding no evidence of causation, allowed Tucker's motion to exclude those medical records, and Sarvis has not made any argument on appeal regarding that ruling.

      Tucker's request for appellate attorney's fees is denied. Sarvis's motion for leave to file an opposition to Tucker's request for fees is denied as moot.


text:
    COMMONWEALTH v. Jose U. REYES.
    17-P-473
    Appeals Court of Massachusetts.
    Entered: August 10, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The Commonwealth appeals from a District Court order allowing the defendant's motion to withdraw his guilty plea and admissions to sufficient facts on the ground of ineffective assistance of counsel. Concluding that the motion judge abused his discretion, we vacate and remand.

Background. In 2009, the defendant, Jose U. Reyes, pleaded guilty or admitted to sufficient facts as to several charges including assault and battery on a police officer. In 2015, the defendant filed a motion to vacate those pleas, claiming that his counsel rendered ineffective assistance in failing (a) to inquire into his immigration status, and (b) to advise him as to resulting immigration consequences. The motion judge (who was also the plea judge) granted an evidentiary hearing, at which no witnesses testified and only a few documents were offered as exhibits. At or prior to the hearing, the defendant submitted affidavits from himself, immigration counsel, and plea counsel. The defendant's affidavit alleged, inter alia, that he had "Temporary Protected Status" at the time of his pleas, that plea counsel never discussed immigration consequences with him, and that had counsel provided him accurate immigration-related information he would have chosen to go to trial. Plea counsel's affidavit, by contrast, averred that as part of his normal practice at the time, he would have explained the alien rights notice on the tender of plea form to the defendant and "would have told him that it was possible that he could be deported."

The defendant relied almost exclusively on the affidavits at the June, 2016, hearing. The argument centered on the claim that had the defendant known that he would suffer adverse immigration consequences, he would not have pleaded guilty or admitted to sufficient facts, and would have sought a trial or other disposition. The defendant, through counsel, also represented to the court that "there's currently a date scheduled for hearing in the immigration court in September," but did not specify the nature or subject of that hearing.

The Commonwealth objected to the affidavits "being taken as evidence," advised that it was not entering into any stipulations with regard to the averments in the affidavits, and stated that the defendant had the burden to produce evidence and call witnesses. The judge allowed the defendant's motion, but did not issue any findings of fact or rulings of law. This appeal ensued.

Discussion. We treat a motion to withdraw a guilty plea as a motion for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). Appellate courts review the allowance of a rule 30(b) motion for a "significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "The policy favoring the finality of just convictions imposes a rigorous standard upon the discretionary allowance of motions under rule 30(b)," Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 738 (2014) (quotation omitted), which should happen only in "exceptional situations." Commonwealth v. Gordon, 82 Mass. App. Ct. 389, 394 (2012).

Here, there were unresolved issues of fact and credibility surrounding myriad claims, including what the defendant and plea counsel discussed on the topic of immigration, the viability of the defendant's allegations of self-defense during the 2009 incident, and the defendant's alleged connections to the community at the time of his plea. These unsettled matters, which were not agreed upon by the Commonwealth and were unclear from the affidavits, are relevant to both the "ineffectiveness" and "prejudice" prongs of the ineffective assistance of counsel test, which the defendant must satisfy to succeed on his motion. See Commonwealth v. Lastowski, 478 Mass. 572, 575-576 (2018) (outlining defendant's burden of proof in context of motion to vacate pleas based on ineffective assistance). Furthermore, there were inconsistencies between the affidavits, which, in this case, should have been resolved through witness testimony, credibility determinations, exhibits, or other actual evidence. See Commonwealth v. Bertrand, 385 Mass. 356, 364 (1982) (where defendant's motion for new trial was based on facts neither agreed upon nor apparent on face of record, he had burden of proving such facts); Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 637 (2001) ("The defendant has the burden of producing a credible reason to reverse the final decision, arrived at after trial or plea, that outweighs the risk of prejudice to the Commonwealth"); Gordon, 82 Mass. App. Ct. at 395 (judge should not have allowed motion for new trial based on affidavits alone, "as the affidavits leave too many factual questions unanswered"). This is not the type of record upon which a motion to vacate could properly be allowed without receiving additional evidence, particularly where the Commonwealth disputed and opposed the defendant's factual and legal claims.

Remedy. At oral argument, the Commonwealth indicated that it would be reasonable for the court to remand this matter for a new hearing. With that in mind, and for the reasons expressed above, we vacate the order allowing the defendant's motion and remand for further proceedings including a full evidentiary hearing and findings of fact pursuant to rule 30(b).

So ordered.

vacated and remanded.

      The other charges were resisting arrest, failing to stop for police, negligent operation of a motor vehicle, and operation of a motor vehicle while under the influence of intoxicating liquor, second offense. Though the assault and battery on a police officer and resisting arrest charges were continued without a finding, the defendant admitted to sufficient facts as to both.

      We treat admissions to sufficient facts as guilty pleas for purposes of our analysis. See Luk v. Commonwealth, 421 Mass. 415, 418 n.6 (1995).

      The defendant's motion was not accompanied by the supporting affidavits of plea counsel and immigration counsel, and it is unclear from the record before us when the defendant's own affidavit was submitted. The better practice would have been to require the defendant to file the supporting affidavits prior to allowing an evidentiary hearing. See Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001) (requiring moving party to file and serve affidavits in support of motion).

      Counsel offered copies of two deeds and a mortgage for the defendant's home.

      The defendant also alleged that (1) he has family who "have resided, and continue to reside" in the United States, and (2) during the incident leading to the charges, any actions he took against the police officer were in self-defense. According to immigration counsel's affidavit, the defendant had removal proceedings pending in the immigration court prior to the evidentiary hearing.

      The affidavits were not marked as exhibits or entered in evidence.

      Rule 30(b) requires that a judge make factual findings "as are necessary to resolve the defendant's allegations of error of law." Mass.R.Crim.P. 30(b). See Almonte, 84 Mass. App. Ct. at 739 n.2 ("[A] substantial factual dispute in the motion documents demands an evidentiary hearing and findings as a prerequisite for vacation of a final conviction) (emphasis added). Although factual findings may be unnecessary "where the ultimate conclusion is clearly evident from the record," Commonwealth v. Lanoue, 392 Mass. 583, 586 n.2 (1984), this is not such a case. See Commonwealth v. Sylvain, 466 Mass. 422, 439 (2013).


text:
    COMMONWEALTH v. FARID F., a juvenile.
    17-P-1024
    Appeals Court of Massachusetts.
    Entered: August 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On December 13, 2016, the defendant, a juvenile, was adjudicated delinquent after pleading guilty to unarmed robbery of a person age sixty or older, in violation of G. L. c. 265, § 19(a ). The juvenile was committed to the Department of Youth Services (DYS) until his eighteenth birthday. The Juvenile Court subsequently suspended this sentence and placed the juvenile on probation. On February 21, 2017, the juvenile was notified of a violation of his probation for possessing a firearm without a firearm identification card (FID card), in violation of G. L. c. 269, § 10, and receiving stolen property valued over $250, in violation of G. L. c. 266, § 60. After a hearing on March 21, 2017, the Juvenile Court judge found that the juvenile violated his probation. The judge revoked the juvenile's previously suspended sentence from December 13, 2016, and committed the juvenile to DYS custody until his eighteenth birthday.

The juvenile appeals, arguing that: (1) the revocation of his probation was error because the judge relied on hearsay statements that lacked sufficient indicia of reliability, and (2) even if the hearsay statements were reliable, there was insufficient evidence to support the judge's finding that the juvenile committed the crime of possessing a firearm without an FID card. We affirm.

Factual Background. We recite the essential facts reflected in the record. On February 18, 2017, Officer Camacho and four other police officers responded to a report of a breaking and entering in progress. Upon entering the house, Officer Camacho and another officer made their way up to the attic on the third floor. Officer Camacho testified that there were "numerous teens" in the attic and that he observed the juvenile sitting on a chair that had a black jacket hanging on the back of it. After Officer Camacho observed what he thought was "the butt of a gun" in one of the teen's pockets, all of the teens were ordered "up against the wall." Thereafter, "another handgun" was observed in the corner of the attic. The officers subsequently ordered the teens to lower to the ground "on their knees and to maintain their hands up on the wall." Officer Camacho thereafter observed a "pink and white" handgun "in the black jacket" hanging on the back of the chair where the juvenile was originally sitting. Officer Camacho testified that the handgun was "heavy" and "weigh[ed] down" the black jacket. Officer Camacho further testified that the handgun had no magazine, but "appeared to be ... working" because another officer was able to "slide the rack back." After the officers called the handgun's serial number in to dispatch, the officers learned that the handgun had been stolen from a burglary in Maine. Two of the teens at the house, MJ and JJ, both of whom were present in the attic at the time the officers entered, told Officer Camacho that the black jacket belonged to the juvenile. Later that evening, EJ, who was also present in the attic at the time the officers entered, arrived at the police station and told Officer Camacho that the gun was his and that "he placed the gun in [the juvenile's] black jacket" while "they were in the car" before going to the party. EJ also told Officer Camacho that the handgun "was pink and white - or pink, and that it had no magazine."

Discussion. The juvenile argues that the judge's finding that the juvenile violated his probation was based "entirely on hearsay that lacks sufficient indicia of reliability." We disagree.

"Although revocation of probation may be based upon a violation of criminal law, there is no prerequisite that the probationer be convicted." Commonwealth v. Emmanuel E., 52 Mass. App. Ct. 451, 453 (2001) (quotation omitted). The Commonwealth, therefore, need only "produce evidence that would permit the judge to determine by a preponderance of the evidence that the juvenile had violated ... a criminal law." Ibid. Hearsay evidence may be relied upon so long as it has substantial indicia of reliability. Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). In determining the trustworthiness and reliability of hearsay evidence, a judge may consider:

"(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity." Ibid.

Here, Officer Camacho's testimony was not based solely on hearsay statements, rather, his testimony, which the judge specifically credited, included his personal observation that the juvenile was sitting in the chair that had the black jacket hanging on the back of it. The portions of Officer Camacho's testimony that did contain hearsay statements from MJ and JJ had, as the judge found, an indicium of reliability. MJ's and JJ's statements to Officer Camacho were internally consistent with each other, and corroborated Officer Camacho's personal observations. In addition, both MJ and JJ were in the attic with the juvenile when Officer Camacho arrived, and their statements were given on the same night as the incident. While MJ and JJ could be viewed as declarants who were not disinterested at the time they provided their statements, there is "no requirement that hearsay satisfy all [of the trustworthiness and reliability] criteria." Commonwealth v. Patton, 458 Mass. 119, 133 (2010). Here, satisfaction of the other hearsay criteria substantially supports the veracity and reliability of MJ's and JJ's statements to Officer Camacho. Furthermore, as the judge noted, Officer Camacho "was available to be cross examined and was cross examined diligently by defense counsel." We see no error.

The juvenile next argues that even if the hearsay statements were reliable, there was insufficient evidence to prove that he committed the crime of possessing a firearm without an FID card. A judge's determination as to whether certain terms of probation have been violated "is based only on a preponderance of the evidence, not proof beyond a reasonable doubt." Commonwealth v. King, 71 Mass. App. Ct. 737, 740 (2008) (quotation omitted). Constructive possession requires "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Rosa, 17 Mass. App. Ct. 495, 498 (1984) (quotation omitted). Although "presence in an area where [a weapon] is found alone cannot show the requisite knowledge, power, or intention to exercise control over the [weapon], ... presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency." Commonwealth v. Brzezinski, 405 Mass. 401, 409-410 (1989) (quotations omitted). Here, the juvenile was not merely present in the attic. The evidence showed that he was in close proximity to the handgun, he owned the black jacket in which the handgun was found, and the "heavy" handgun was allegedly placed in his jacket pocket before going to the party. A fact finder could infer from such evidence that the defendant was not only aware of the "heavy" handgun in his jacket pocket, but also that he had the ability and intent to exercise control over it. We, thus, agree with the judge that the Commonwealth proved by a preponderance of the evidence that the juvenile constructively possessed the firearm and therefore violated his probation. The juvenile's remaining arguments have not been overlooked. They do not require discussion.

Order revoking probation affirmed.

      The delinquency complaint also included a charge for improper storage of a firearm, in violation of G. L. c. 140, § 131L(a ), (b ). This count was later dismissed.

      The juvenile's brief presents no legal argument on the stolen property charge.

      This object was later identified as a BB gun.

      This second object was also later identified as a BB gun.

      The juvenile only challenges the statements made by MJ and JJ as lacking sufficient indicia of reliability.

      We find it noteworthy, as the Commonwealth points out in its brief, that MJ and JJ made their statements to Officer Camacho even when such statements could have subjected them to "potential ... prosecution in the event they lied to police." See G. L. c. 269, § 13A. See also Commonwealth v. Nunez, 446 Mass. 54, 59 (2006).

      In any event, the juvenile also was found in violation of his probation for receiving stolen property, but his brief presents no legal argument on that charge. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

      See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).