text:
    Milton LOPEZ v. Mansour M. EL-WERFALLI.
    17-P-1581
    Appeals Court of Massachusetts.
    Entered: November 1, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Milton Lopez, appeals from an order of the District Court denying his special motion to dismiss the defendant Mansour El-Werfalli's counterclaims for abuse of process and violation of G. L. c. 93A, pursuant to the anti-SLAPP statute, G. L. c. 231, § 59H. On appeal, Lopez claims the motion judge erred in concluding that El-Werfalli's counterclaims were not SLAPP claims. We affirm.

To prevail on a special motion to dismiss under the anti-SLAPP statute, the movant bears the initial burden of showing that the nonmovant's claims "are 'based on' the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Blanchard v. Steward Carney Hosp., Inc., 477 Mass. 141, 147 (2017), quoting Fustolo v. Hollander, 455 Mass. 861, 865 (2010). If the movant makes this showing, the burden shifts to the nonmovant to prove that the petitioning activity "was devoid of any reasonable factual support or any arguable basis in law" and caused the nonmovant "actual injury." G. L. c. 231, § 59H. See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 165, 168 (1998). In applying this burden-shifting test, "the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." G. L. c. 231, § 59H. See Blanchard, supra at 160. "If the nonmoving party cannot make this showing, it may then attempt to meet its burden under the augmented Duracraft framework as set out in Blanchard by showing that its claim was not 'brought primarily to chill,' see Blanchard, 477 Mass. at 159, quoting Duracraft, 427 Mass. at 161, the special movant's legitimate petitioning activities but rather 'to seek damages for the personal harm to [it] from [the] defendants' alleged ... [legally transgressive] acts.' See Blanchard, supra at 160." 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 168 (2017). We examine each counterclaim separately and we review the judge's ruling for abuse of discretion or error of law. See Baker v. Parsons, 434 Mass. 543, 550 (2001).

In his G. L. c. 93A, § 11, counterclaim, El-Werfalli alleged that Lopez failed to abide by the terms of the lease, including Lopez's failure to obtain insurance for the commercial premises and properly maintain the premises. El-Werfalli further claims that Lopez's attempt to collect damages after the fire while knowing that El-Werfalli had relied on Lopez's duty to obtain insurance and maintain the premises was an unfair and deceptive trade practice. Given these allegations, the judge did not abuse his discretion in denying the special motion to dismiss because Lopez failed to meet his initial hurdle of showing that the 93A claims were "based on the petitioning activities alone and ha[d] no substantial basis other than or in addition to the petitioning activities." Blanchard, supra at 147. See 477 Harrison Ave., LLC, supra at 168, 171.

The abuse of process claim stands on a different footing. In this counterclaim, El-Werfalli asserts that Lopez, by filing the underlying meritless and improper action, is attempting to recover monies he is not due. "Given that the invocation of process necessarily constitutes petitioning activity for the purposes of the anti-SLAPP statute, see G. L. c. 231, § 59H (petitioning activity includes 'any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding'), an actionable abuse of process claim will always be, at least in part, based on a special movant's petitioning activities." 477 Harrison Ave., LLC, 477 Mass. at 169. The key inquiry here is whether "the only conduct complained of is ... petitioning activity." Fabre v. Walton, 436 Mass. 517, 524 (2002). Here, Lopez met his burden that the claim was based on petitioning activity alone.

As Lopez met the initial burden, the analysis then shifts to El-Werfalli to demonstrate, "by a preponderance of the evidence," that Lopez's petitioning activity upon which the abuse of process claim is based is illegitimate -- i.e., that it "lacked any reasonable factual support or any arguable basis in law," Baker, 434 Mass. at 553-555, and caused it "actual injury." G. L. c. 231, § 59H. In the alternative, if he cannot make this showing, El-Werfalli may now also prevail by establishing to the judge's fair assurance that its abuse of process claim is not a SLAPP suit under the augmented Duracraft framework -- i.e., "that [his] primary motivating goal in bringing [his] claim, viewed in its entirety, was 'not to interfere with and burden [Lopez's] ... petition rights, but to seek damages for the personal harm" to him from Lopez's alleged conduct. Blanchard, 477 Mass. at 160.

Here, El-Werfalli's abuse of process counterclaim rests on two grounds other than Lopez's invocation of process: (1) Lopez breached the lease by not obtaining insurance for the premises, and (2) El-Werfalli is blameless and owes Lopez no money. Passing on the legitimacy of the claim, we conclude that, on this record, the judge could have been fairly assured that the abuse of process claim is not a SLAPP suit. Id. The abuse of process count was brought as a counterclaim to Lopez's action, i.e., his petitioning activity. Accordingly, it is difficult to discern how the counterclaim could interfere with or burden Lopez's petitioning activity, when the action had already been filed, especially where the abuse of process count is just one of several unrelated counterclaims.

Order denying special motion to dismiss affirmed.

      This interlocutory appeal is properly before us under the doctrine of present execution. Fabre v. Walton, 436 Mass. 517, 521-522 (2002).

      Lopez's request for attorney's fees is denied.


source: Caselaw Access Project

license: Public Domain

text:
    George MACKIE v. COMMISSIONER OF CORRECTION & Another.
    17-P-1527
    Appeals Court of Massachusetts.
    Entered: November 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Thomas Turco, in his individual and official capacity.

      Colette Goguen, Superintendent, North Central Correctional Institution-Gardner, in her individual and official capacity.

   The plaintiff, George Mackie, a prisoner at North Central Correctional Institution-Gardner (NCCI), filed a pro se complaint in the Superior Court seeking judicial review of the denial of four grievances he filed against the defendants involving the processing of his mail. The defendants moved to dismiss the complaint for failure to prosecute pursuant to Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974). The judge allowed the motion, and the plaintiff appealed. We reverse.

Standard of review. "[D]ismissal under Mass. R. Civ. P. 41 (b) (2) for failure to prosecute is committed to the sound discretion of the trial judge and can be reversed only in the rare instance that it is so arbitrary, capricious, whimsical, or idiosyncratic that it constitutes an abuse of discretion amounting to an error of law." Dewing v. J.B. Driscoll Ins. Agency, 30 Mass. App. Ct. 467, 470 (1991). Accordingly, we review for abuse of discretion.

Failure to prosecute. Rule 41 (b) (2) states that "[o]n motion of the defendant, with notice, the court may, in its discretion, dismiss any action for failure of the plaintiff to prosecute or to comply with these rules or any order of the court." Because the plaintiff is seeking judicial review of an administrative agency proceedings, his complaint is governed by Superior Court Standing Order 1-96 (2017). Paragraph 4 of this standing order requires that "[a] claim for judicial review shall be resolved through a motion for judgment on the pleadings, Mass. R. Civ. P. 12 (c).... A plaintiff's Rule 12 (c) motion and supporting memorandum shall be served within thirty (30) days of the service of the record."

Here, the plaintiff filed his complaint on January 18, 2017. The defendants filed their answer and the administrative record on April 19, 2017. When the defendants filed the record, the plaintiff's obligation to serve a motion for judgment on the pleadings within thirty days pursuant to the standing order was triggered. However, on May 15, 2017, the plaintiff filed a motion for extension of time to file judgment on the pleadings with an affidavit. No action was taken on the motion. Thereafter, on June 13, 2017, the plaintiff filed a motion to amend the complaint and motion for leave to file second supplemental civil complaint along with an affidavit. No action was taken on these motions.

The defendants moved for dismissal under rule 41 (b) (2), and after hearing, their motion was allowed. However, the plaintiff was actively pursuing his case. Indeed, he had filed a motion for an extension of time to file a motion for judgment on the pleadings which was pending when his case was dismissed. Additionally, the defendants failed to identify any meaningful prejudice that would result from the delay. Under these circumstances, allowance of the rule 41 (b) motion was an abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Judgment reversed.

      The complaint is in the nature of certiorari, as well as for declaratory judgment and compensatory and punitive damages.


text:
    TOWN OF FALMOUTH v. ZONING BOARD OF APPEALS OF FALMOUTH & others.
    18-P-104
    Appeals Court of Massachusetts.
    Entered: November 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Matthew McNamara, Patricia Johnson, Kenneth Foreman, Edwin Zylinski, David Haddad, and Mark Cool, as members of the Falmouth Zoning Board of Appeals; and Barry Funfar and Diane Funfar.

   Dr. George Woodwell and The Green Center, Inc. (proposed interveners) appeal from the denial of their motion to intervene in an action between the town of Falmouth (town) and the Falmouth zoning board of appeals (board) in which judgment had already entered. The judgment declared that two wind turbines operated by the town were a nuisance and ordered that their operation cease and desist. The town did not appeal from that judgment. The proposed interveners sought to defend the interests of the town by intervening for the purpose of filing a motion for relief from judgment to modify the remedy pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974). The judge denied the motion concluding that the interveners could not likely establish standing, and that the motion was untimely. We affirm.

1. Background. Barry and Dianne Funfar (the Funfars) filed a request with the Falmouth building commissioner for enforcement of the zoning code as to the operation of two wind turbines in Falmouth. Their request was denied and the Funfars appealed to the board, which reversed the commissioner's decision. The town appealed and after a bench trial in the Superior Court, the judge found the turbines violated the zoning code and ordered that they cease operation. Judgment entered on June 21, 2017, and the town did not appeal.

On November 15, 2017, after the thirty-day deadline to appeal the judgment had passed, the proposed interveners filed a motion to intervene pursuant to Mass. R. Civ. P. 24 (a) (2) and (b) (2), 365 Mass. 769 (1974), and motion for relief from judgment to modify the remedy pursuant to Mass. R. Civ. P. 60 (b). The judge denied the motion to intervene and deemed the rule 60 (b) motion moot. This appeal followed.

2. Intervention. a. As of right. Intervention as a matter of right pursuant to Mass. R. Civ. P. 24 (a) (2) requires that the proposed interveners demonstrate that: (1) they had an interest in the town's suit; (2) disposition of that suit may have impaired their ability to protect that interest; and (3) the town did not adequately represent that interest. Johnson Turf & Golf Mgt., Inc. v. Beverly, 60 Mass. App. Ct. 386, 389 (2004). "[I]nterest in the litigation must be 'significantly protectable,' ... and must be sufficiently direct and immediate to justify the intervention.... The interest does not suffice if it is remote or contingent." Bolden v. O'Connor Cafe of Worcester, Inc., 50 Mass. App. Ct. 56, 62 (2000). The party seeking intervention must demonstrate an interest that is distinct from the interests the parties have already presented. Local 589, Amalgamated Transit Union v. Massachusetts Bay Transp. Auth., 392 Mass. 407, 410 (1984). "Whether the prospective intervener has met 'the requirements for intervention is a question of law,' and therefore we review the ruling de novo" (citation omitted). Beacon Residential Mgt., LP v. R.P., 477 Mass. 749, 753 (2017).

The proposed interveners claim that they were entitled to intervention as of right because they had compelling interests that were no longer being adequately represented by the town. Their purported interests are financial, environmental, and professional. As residents and taxpayers, they assert that they will ultimately be responsible for the wasted costs in the production, erection, and removal of the wind turbines, and that the town, and therefore its residents, will lose revenue that the wind turbines would have produced that could have been used to offset some of the town's expenses. Further, they contend that whatever source of energy is used to replace the energy that the wind turbines would have produced will likely be generated by fossil fuels and will therefore contribute to the town's pollution and emissions and negatively affect the proposed interveners.

The prevention of a waste of tax revenue is not a direct or immediate interest because the harm taxpayers will suffer is too generalized. See Application of Biester, 487 Pa. 438, 444 (1979) (prevention of waste of tax revenue, under circumstances presented, is merely same interest all citizens have in having others comply with law or constitution). So too is the assertion that fossil fuels will be used in place of the turbines. Neither of these is a direct or immediate interest to town residents. Further, these interests are not distinct from those of the town, which is tasked with representing the interests of all of its residents.

As an organization, The Green Center has not offered sufficient evidence to support the assertion that its interest in reducing environmental contamination will in fact be harmed by the judgment. See Citizens to End Animal Suffering & Exploitation v. New England Aquarium, 836 F. Supp. 45, 53 (D. Mass. 1993) (standing requirements not satisfied where organizational plaintiffs failed to offer evidence of actual or imminent harm). Accordingly, The Green Center also does not meet the "interest" requirement as set forth in the rule.

Even if the proposed interveners asserted a protectable interest distinct from that of the town, they have not demonstrated that the town failed to adequately represent their interests. To succeed under rule 24 (a) (2), the proposed interveners had "the burden ... of making a compelling showing of inadequate representation" (citation omitted). Planned Parenthood League of Mass., Inc. v. Attorney Gen., 424 Mass. 586, 599 (1997). They did not carry their burden here.

Moreover, the proposed interveners do not contend that the town's interest is adverse to theirs, or that the town has colluded with the opposing party or failed to fulfil its duty of representation. See Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. School Comm. of Chelsea, 409 Mass. 203, 207-208 (1991) (record did not support claim that parents' objectives differed from those of school committee where school committee was as dedicated as parents to goal of improving quality of education while maintaining public oversight). A government "is presumed to represent the interests of its citizens ... when it is acting in the lawsuit as a sovereign." United States v. New York, 820 F.2d 554, 558 (2d Cir. 1987). "[I]f disagreement with an actual party over trial strategy, including over whether to challenge or appeal a court order, were sufficient basis for a proposed intervenor to claim that its interests were not adequately represented, the requirement [that a State is presumed to represent the interests of its citizens when acting as a sovereign in litigation] would be rendered meaningless." United States v. Yonkers Bd. of Educ., 902 F.2d 213, 218 (2d Cir. 1990). The town sought judicial review of the board's decision and presented all colorable contentions, but lost. See Natural Resources Defense Council, Inc. v. New York State Dep't of Envtl. Conservation, 834 F.2d 60, 61-62 (2d Cir. 1987) ("So long as the party has demonstrated sufficient motivation to litigate vigorously and to present all colorable contentions, a district judge does not exceed the bounds of discretion by concluding that the interests of the intervenor are adequately represented"). The fact that the town did not appeal the judgment does not mean that it failed to fulfil its duty to its residents. To the contrary, a taxpayer may be well served by a government which makes strategic decisions about when to stop spending taxpayer dollars in litigation. In any event, if a citizen believes that the town government has made incorrect decisions with respect to litigation, that does not mean that the town has not adequately represented the citizen's interest such that he or she can take over that litigation. The citizen's remedy can be found at the ballot box, not in the rules of civil procedure.

b. Permissive intervention. Alternatively, the proposed interveners claim that they were entitled to permissive intervention pursuant to rule 24 (b) (2) because their claim -- enduring financial, environmental, and professional loss -- has a question of law or fact in common with the main action. An individual may be permitted to intervene in an action "when an applicant's claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Mass. R. Civ. P. 24 (b) (2). We review for an abuse of discretion. Bolden, 50 Mass. App. Ct. at 70. Abuse of discretion occurs where the judge "made a 'clear error of judgment in weighing' the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

We see no reason to disturb the judge's ruling. He was aware of the history of this litigation, including negotiations between the town and the proposed interveners beginning in 2013. The judge was required to consider whether intervention would delay or prejudice the adjudication of the rights of the original parties. Here, he properly considered that intervention would delay and complicate the final resolution that was achieved between the original parties, and would therefore prejudice those parties. Indeed, the original parties considered the matter to be concluded. Moreover, reopening the case would cause the original parties to incur additional legal expenses. See Peabody Fed'n of Teachers, Local 1289, AFT, AFL-CIO v. School Comm. of Peabody, 28 Mass. App. Ct. 410, 414 (1990) (no abuse of discretion where "reopening the judgment would have been delay in the payment of back pay ... [and] [a]dditional legal expenses would be incurred which would likely deplete the settlement pot"). For these reasons, the judge did not abuse his discretion in denying the motion.

c. Pleading requirement. Lastly, the proposed intervener's motion did not comply with Mass. R. Civ. P. 24 (c), which states that "[a] person desiring to intervene shall serve a motion to intervene upon the parties .... The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." The proposed interveners did not file a "pleading," but argue that their rule 60 (b) motion suffices for the purposes of rule 24 (c).

The rule 60 (b) motion did not constitute a pleading under Mass. R. Civ. P. 7, as amended, 385 Mass. 747 (1974), and therefore did not cure this procedural defect. For this reason alone, the motion to intervene was properly denied. See Board of Selectmen of Stockbridge v. Monument Inn, Inc., 8 Mass. App. Ct. 158, 162 (1979) (no error denying intervention when proposed interveners failed to submit pleading).

Order denying motion to intervene affirmed.

      Litigation concerning the wind turbines have been before this court in two prior appeals. Drummey v. Falmouth, 87 Mass. App. Ct. 127 (2015) (special permit was required for building of wind turbines); and Funfar v. Falmouth, 93 Mass. App. Ct. 1108 (2018) (abutter's appeal from dismissal of their attempted late appeal challenging second of two wind turbines dismissed as moot).

      Assuming without deciding the timeliness of the proposed interveners' motions, we review the merits of their claims. See McDonnell v. Quirk, 22 Mass. App. Ct. 126, 132 (1986) ("Although motions to intervene after judgment are seldom 'timely,' ... they may be allowed if the proposed intervener demonstrates a strong justification for intervention after judgment" [emphasis omitted] ).

      Rule 24 (a) (2) provides that "Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."

      The proposed interveners raise the issue of professional interests for the first time on appeal. As such this issue is waived. See Mass. R. A. P. 16 (a), as amended, 428 Mass. 1603 (1999).


text:
    COMMONWEALTH v. Steven HAGGETT.
    18-P-654
    Appeals Court of Massachusetts.
    Entered: November 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in District Court, the defendant, Steven Haggett, was convicted of operating a motor vehicle under the influence of alcohol, pursuant to G. L. c. 90, § 24 (l) (a ) (1). On appeal, he contends that he is entitled to a new trial because one of the jurors should have been excused for cause. We affirm.

A defendant who challenges the trial judge's denial of a challenge for cause bears a "heavy burden." Commonwealth v. Lattimore, 396 Mass. 446, 449 (1985). "Where ... a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, we will not conclude that the judge abused his discretion by empaneling the juror unless juror prejudice is manifest." Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001). This is because the "determination of a juror's impartiality 'is essentially one of credibility,' " to which this court gives great deference. Commonwealth v. Ferguson, 425 Mass. 349, 352-353 (1997) (citation omitted). "A trial judge's initial determination that a juror stands indifferent will not be disturbed on appeal unless the defendant demonstrates that there was a substantial risk that the case would be decided in whole or in part on the basis of extraneous issues." Commonwealth v. Ascolillo, 405 Mass. 456, 460 (1989).

The defendant asserts that the juror here was excusable for cause on the basis that the juror's employment involved the Department of Correction, including some level of interaction with pretrial detainees and inmates. Absent a showing of prejudice or partiality, a juror's occupation alone, including employment in the criminal justice system, generally is an insufficient basis to support a challenge for cause. See Commonwealth v. Duran, 435 Mass. 97, 107 (2001) ; Ascolillo, 405 Mass. at 460-461. Here, the juror clearly and unequivocally stated that he could be fair and impartial, would weigh the evidence, understood the defendant was not obligated to testify or present any witnesses, and understood the presumption of innocence as well as the Commonwealth's burden to prove the defendant's guilt beyond a reasonable doubt. We discern no abuse of discretion under such circumstances.

Judgment affirmed.

      The defendant states that the juror's employment was in the transportation division of Department of Correction and included close proximity to detainees and inmates. The transcript, however, is unclear. It shows only that, after an indiscernible portion of the transcript, the judge asked, "-- for the Massachusetts Department of Correction?" The juror replied, "Yes." The judge then asked, "So you deal with people who either have -- are being held pretrial or have already been convicted, is that correct?" The juror again replied, "Yes". The defendant, who bears the burden to ensure an adequate appellate record exists for an appellate court to evaluate his claim of error on appeal, has made no effort to reconstruct the record for appellate review. See Mass. R. A. P. 8 (c) and (e), as amended, 378 Mass. 932 (1979). We decline to speculate about what occurred at the side bar. Commonwealth v. Woods, 419 Mass. 366, 372 (1995).

      For these same reasons, we disagree with the defendant's contention that the judge erred in selecting this juror as the jury foreman.


text:
    COMMONWEALTH v. Carlos Omar MONTES.
    17-P-989
    Appeals Court of Massachusetts.
    Entered: November 6, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A Superior Court judge revoked the defendant's probation and imposed sentence after finding that the defendant violated his probation by committing new offenses of assault and battery, assault by means of a dangerous weapon (ADW), and mayhem, and by failing to verify participation in mental health treatment. The defendant appeals, arguing that the findings of violations were based on unreliable hearsay and otherwise flawed. We conclude that the hearsay was substantially reliable, but we agree that the findings of violations based on the defendant committing an ADW and failing to verify his mental health treatment were in error. We shall therefore vacate the judge's order and remand for further proceedings consistent with this memorandum and order.

Standard of review. Because the victim of the defendant's attack exercised her privilege against self-incrimination and did not testify at the probation violation hearing, the judge based her findings of new offenses on a transcript of the victim's testimony at an earlier dangerousness hearing pursuant to G. L. c. 276, § 58A, and other documents. Accordingly, we review the judge's findings without deference. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018).

Reliability of hearsay. The defendant argues that the § 58A hearing testimony was unreliable hearsay. When hearsay is the only evidence of a probation violation, it "must be substantially reliable." Commonwealth v. Durling, 407 Mass. 108, 118 (1990). To evaluate whether the § 58A testimony was substantially reliable, we turn to the factors listed in Commonwealth v. Patton, 458 Mass. 119 (2010). They include:

"(1) the level of factual detail, rather than generalized and conclusory assertions; (2) whether the statement is based on personal knowledge and direct observation; (3) whether the statement is corroborated by evidence submitted by the probationer; (4) whether the statement was provided under circumstances that support the veracity of the source; and (5) whether the statement was provided by a disinterested witness."

Id. at 132-133.

The judge found the § 58A testimony to be substantially reliable because it was made close in time to the events in question and it was corroborated. We agree. The victim testified at the § 58A hearing and named the defendant as her assailant only four days after her assault. Her testimony was corroborated by her prior statements -- also naming the defendant as her assailant -- to hospital personnel, to a police officer at the hospital, and in her own G. L. c. 209A complaint and affidavit filed the day after the assault. That the victim repeated her version of events with consistency over several days weighs in favor of its reliability. See id. at 134 (finding child victim's hearsay statement credible based in part on her "ha[ving] repeated its details with consistency several times over four days"); Commonwealth v. Janovich, 55 Mass. App. Ct. 42, 46 (2002).

Several other Patton factors similarly weigh in favor of the testimony's reliability. The victim provided a factually detailed account, based on "personal knowledge and direct observation." Patton, 458 Mass. at 133. The testimony was also given under oath and subject to cross-examination. See id. (reliability depends in part on "whether the statement was provided under circumstances that support the veracity of the source"). Although the victim had previously provided some inconsistent accounts concerning past incidents of abuse by the defendant, and her § 58A testimony about the assault at issue differed in one particular from earlier accounts, these discrepancies do not negate the substantial reliability of her § 58A testimony.

Assault and battery. We agree with the judge that, based on a preponderance of the evidence, see Commonwealth v. Holmgren, 421 Mass. 224, 227 (1995), the defendant violated his probation by committing an assault and battery. The defendant does not argue that any elements of assault and battery were not met here; he argues only that there is insufficient evidence that he was the perpetrator. Based on the victim's substantially reliable testimony, we conclude otherwise.

Mayhem. We also agree that the defendant committed mayhem. The defendant's argument on this point is that there was no evidence that he possessed a "malicious intent to maim or disfigure," as required by the mayhem statute, G. L. c. 265, § 14. We disagree.

Malicious intent may be shown by "direct or inferential proof that the assault was intentional, unjustified, and made with the reasonable appreciation ... that a disabling or disfiguring injury would result." Commonwealth v. Davis, 10 Mass. App. Ct. 190, 196 (1980). Intent can "be inferred from the severity and extent of the injuries." Commonwealth v. Hap Lay, 63 Mass. App. Ct. 27, 36 (2005).

The evidence shows that the defendant entered into a physical altercation with the victim that resulted in tearing her earlobe. The defendant argues that because the victim's earlobe was already in a weakened state and was thus prone to injury from mere negligence, malice cannot be inferred. But the victim's earlobe was visibly vulnerable. It was reasonably appreciable that a disfiguring injury would result if the defendant were to strike her ear. The victim testified that the defendant attacked her from behind, hit her in multiple places, and "ripped" her ear. From this evidence we can infer that the defandant inflicted the ear injury maliciously rather than negligently and thus committed mayhem.

Assault with a dangerous weapon. The defendant asserts that there is no evidence he committed an ADW. We agree. Although the Commonwealth alleged before the § 58A hearing that the defendant had kicked the victim with a shod foot and there was evidence that the victim was kicked, there was no evidence of a shod foot. Therefore it was error to find that the defendant violated his probation based on having committed an ADW.

Verification of mental health treatment. The defendant argues that his alleged failure to verify his mental health treatment was not a valid basis to find him in violation of probation. Because verification was not a requirement of his probation, we agree. The probation conditions required the defendant to submit to "evaluation and treatment for mental health issues," but they did not require him to submit verification of having done so. Although the Commonwealth is correct that a probation officer may adopt "a reasonable means of enforcing a term of probation established by the sentencing judge," such means do not themselves constitute a "condition of probation." Commonwealth v. Bynoe, 85 Mass. App. Ct. 13, 23 n.12 (2014). A "defendant is in violation of his probation only if he disobeys the conditions of probation imposed by the sentencing judge." Commonwealth v. MacDonald, 435 Mass. 1005, 1007 (2001). Therefore it was error to find that the defendant violated his probation by failing to verify his mental health treatment.

Conclusion. Because we have upheld some but not all of the violations found by the judge, and because "not every violation requires revocation," the matter must be remanded for the judge to consider the appropriate disposition. Commonwealth v. Arroyo, 451 Mass. 1010, 1011 (2008). To do otherwise "would effectively, and improperly, supplant the judge's opportunity to exercise [her] discretion, on appropriate evidence, in the first instance." Id.

Accordingly, the order revoking probation and imposing sentence is vacated and the matter is remanded for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded.

      The defendant was originally placed on probation after he was convicted of various offenses, including unlawful possession of a loaded firearm and two counts of assault and battery on a public employee. After being found in violation of his probation, the defendant's probation was revoked and he was sentenced to several concurrent two-year house of correction terms and to one concurrent ninety-day house of correction term.

      The defendant notes that immediately after her assault, the victim told ambulance personnel a different story: that she was attacked by an unknown assailant. However, the victim credibly addressed this inconsistency in her § 58A testimony, explaining that she and the defendant had agreed on this story so that he would call an ambulance and get her medical attention.

      The defendant asserts that the police officer's testimony at the § 58A hearing was insufficiently reliable because it merely recounted what the victim had told him. The defendant cites Commonwealth v. Ortiz, 58 Mass. App. Ct. 904, 906 (2003), and Commonwealth v. King, 71 Mass. App. Ct. 737, 741 (2008). Here, however, unlike in those cases, the officer's statement was not the primary evidence of probation violations, but instead served mainly to corroborate the victim's own testimony about the violations.

      We note that although the c. 209A complaint lists August 21, 2016, as the date of the incident, the victim in her supporting affidavit wrote July 21, 2016, for the date of the incident and July 22, 2016, for the date she signed the affidavit, rather than August 22, 2016; the Commonwealth explains that the victim made a mistake and the defendant does not argue otherwise.

      In 2015, the victim had told the defendant's probation officer that a past instance of abuse sparked by an argument over an iPad, based on which she obtained a G. L. c. 209A order, "never happened." She also gave some inconsistent accounts regarding when that argument took place and what injuries she sustained.

      The victim told ambulance and hospital personnel that she had not lost consciousness during that assault, but she stated otherwise at the § 58A hearing. Considered in the context of the evidence as a whole, this does not raise a significant question of reliability as to her testimony identifying the defendant as the attacker. The defendant also makes much of the victim's statement to a defense investigator, shortly before the final probation violation hearing, that she had told police and medical personnel "what [she thought] they wanted her to say," and that she "might have lied, [she's] not even sure," in her c. 209A affidavit describing that attack. The victim's statement stopped well short, however, of withdrawing her repeated statements that the defendant had attacked her.

      Contrary to the defendant's suggestion, the admissibility of substantially reliable hearsay does not depend on whether or when a judge determines that the declarant is unavailable. See Commonwealth v. Calvo, 41 Mass. App. Ct. 903, 904 (1996). In any event, the judge here determined that the victim had a valid privilege against self-incrimination and would not be required to testify. This was effectively a determination of unavailability. See Commonwealth v. Canon, 373 Mass. 494, 499-500 (1977), cert. denied, 435 U.S. 933 (1978).

      Before her injury, the victim had worn one-inch "gauges" in her ears. The evidence showed that a gauge is a circular object that is inserted into a hole in the earlobe; the one-inch gauge substantially stretched the victim's earlobe and, when removed, left a sizeable hole and a thin perimeter of earlobe tissue. The victim's ear had also been injured some months prior to the assault at issue. We recognize the contradictory evidence regarding the cause of that earlier injury; the victim had told hospital workers that her daughter had hit her ear, but at the § 58A hearing she testified that the defendant had done so. Regardless of the cause of that earlier injury, it was plain that the ear was prone to further injury.

      In Bynoe, this court upheld a probation officer's authority to require a drug test, as a means of enforcing a probation condition requiring the probationer to remain "drug/alcohol free," but the probationer was not charged with having violated probation by refusing to take such a test, nor did we imply that he could have been found in violation on that basis. Bynoe, 85 Mass. App. Ct. at 23 n.12.

      We express no opinion as to whether probation should be revoked or the sentence should be changed.


text:
    ADOPTION OF HALLIE.
    18-P-515
    Appeals Court of Massachusetts.
    Entered: November 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   On appeal, the father contends that the Juvenile Court judge abused his discretion in declining to order visitation between the child and the father following the termination of the father's parental rights. We affirm.

Discussion. Once it is established that a parent is unfit and parental rights have been terminated, the decision whether to grant posttermination visits is left to the sound discretion of the trial judge. Adoption of Ilona, 459 Mass. 53, 63 (2011). A trial judge may order such posttermination contact only where it is in the best interests of the child. Adoption of Vito, 431 Mass. 550, 553 (2000). Visitation may be warranted where there is a significant, existing bond between a child and a biological parent, and such visitation might assist the child as she negotiates the transition from one family to another. Adoption of Douglas, 473 Mass. 1024, 1028 (2016). If the trial judge concludes that visitation is in the best interests of the child, the judge must next consider whether a court order is necessary to serve the child's best interests or whether, instead, decisions regarding visitation should be left to the adoptive family. Adoption of Ilona, 459 Mass. at 63-64.

Here, the judge did not find that visitation was in the best interests of the child. The father has never been solely responsible for the child's care, and the child has never lived with him. Instead, she has lived with her preadoptive mother -- a close family friend of the mother -- for essentially her entire life (from the time she was discharged from the hospital following her birth in July, 2014, to the time of the trial in April, 2016). The child has no special needs or medical issues, and her preadoptive placement is meeting her needs. At trial, the father acknowledged that the child was "stable" in her preadoptive home and that he was "fine" with the placement (at least until he obtained suitable housing). On appeal, the father confirms that "he does not want to disrupt the child's adoptive placement."

The father's contact with the child consisted of one-hour monthly supervised visits from October, 2014, to March, 2016. There was no evidence of any other contact between the father and the child. While there was evidence that the child was willing to go to the father during some visits, there was also evidence that, at other visits, she was not. The Department of Children and Family social worker expressed concerns about the father's behavior during some visits. Moreover, the preadoptive mother does not support continued visitation, reporting that the child was exhausted from crying following visits with the father. On this record, we cannot reasonably conclude that the judge abused his discretion. Adoption of Douglas, 473 Mass. at 1029 n.12.

Decree affirmed.

      The father, who has (i) a long history of drug abuse, including a relapse during the pendency of this case, (ii) an extensive criminal history, which includes domestic violence against the mother, drug-related crimes, and crimes involving violence against others, and (iii) a demonstrated inability to maintain stable housing, does not challenge either the judge's finding that he is unfit or the termination of his parental rights.

      Citing scientific articles discussing, inter alia, a "holistic family well-being standard," "family systems theory," and "human vulnerability theory," the father contends that the decision whether to order posttermination visits should not be governed by the best interests of the child standard. We disagree. See Adoption of Vito, 431 Mass. at 553.

      The mother, who has struggled with substance abuse for years, admitted that she used cocaine repeatedly during the pregnancy. Following birth, the child remained in the hospital for twenty days due to withdrawal symptoms. The mother's parental rights were also terminated. She did not appeal.

      There is no merit to the father's challenge to the judge's decision not to order posttermination visitation on the ground that there is no information in the record as to the race/ethnicity of the preadoptive mother and speculation that a continued relationship with individuals of the same race/ethnicity as the child may, in the future, affect the best interests analysis. See Adoption of Vito, 431 Mass. at 566.

      We have considered the father's other arguments on appeal, including, inter alia, his claim that the judge ignored his compliance with certain service plan tasks, and find them to be without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    Deanna SHINE v. Paul SHINE.
    18-P-667
    Appeals Court of Massachusetts.
    Entered: November 6, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Deanna Shine, appeals from the March, 2018, orders of a Probate and Family Court judge, denying her leave to file a complaint for contempt and a complaint for modification. With regard to the complaint for contempt, the judge stated, "vis a vis the operative Judgment, the Complaint for Contempt cannot be sustained." With regard to the complaint for modification, the judge stated, "vis a vis the underlying Judgment of August 9, 2011, the complaint [for modification] does not state a claim upon which relief can be granted. Moreover, it does not comport w[ith] requirements of Rule 8 (a) of Dom. Rel. Procedure." The plaintiff's failure to provide this court with either proposed complaint is fatal to her appeal. The "burden is on the appellant to provide [the appellate] court with an appendix sufficient to support its points on appeal." Burda v. Spencer, 28 Mass. App. Ct. 685, 688 (1990). See Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 811 (1992). Moreover, although Shine asserts that her due process, Fifth Amendment to the United States Constitution, and Fourteenth Amendment to the United States Constitution rights were violated, she does not articulate a legal basis for her assertion. To the contrary, she acknowledges that her motions for leave to file the complaints were each denied after a hearing and apparently in view of the proposed complaints she has failed to provide to this court. Accordingly, her brief fails to rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). See also Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996) (stating claims of error not supported by reasoned arguments or citations do not rise to level of required appellate advocacy); Commonwealth v. Bowie, 25 Mass. App. Ct. 70, 74 (1987) (asserting argument in brief not supported by facts from record does not rise to level of adequate appellate argument). Because she has not sustained her burden on appeal, we affirm.

Orders denying leave to file complaints affirmed.

      Shine also refers to a January, 2018, order denying her the same relief. Her notice of appeal is untimely as to this order, which in any event is not identified in her notice of appeal.


text:
    Ajay Kumar SINGH v. Divya Balachandran KURUP-SINGH.
    17-P-961
    Appeals Court of Massachusetts.
    Entered: November 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Divya Balachandran Kurup-Singh (mother) appeals from a judgment of divorce awarding Ajay Kumar Singh (father) sole legal custody of the parties' minor child and limiting the mother to supervised visitation once a week. We affirm.

In matters of custody, "the touchstone inquiry" is the best interests of the child. Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting Custody of Kali, 439 Mass. 834, 840 (2003). "The determination of which parent will promote a child's best interests rests within the discretion of the judge ... [whose] findings ... 'must stand unless they are plainly wrong.' " Id., quoting Custody of Kali, 439 Mass. at 845. We have recognized that this determination requires "a choice among limited alternatives, all of which, invariably, have imperfections, often serious imperfections"; thus, "[t]he judgment that is called for is a realistic, commonsense judgment, one which weighs the practical significance of those imperfections or deficiencies in terms of their effect on the well-being of the child and [her] future development." B.B.V. v. B.S.V., 68 Mass. App. Ct. 12, 18 (2006), quoting Fort v. Fort, 12 Mass. App. Ct. 411, 418 (1981).

Here, we construe the mother's essential argument to be that the judge's custody determination is not in the child's best interests because the judge did not properly consider the domestic abuse committed by the father against the mother. The judge's comprehensive findings reflect, however, that she carefully considered all the evidence, including evidence of the father's abuse, and rendered a "realistic" and "commonsense" decision based on the totality of the circumstances presented. Id. The judge found that, while each party had committed abuse against the other, the mother "principally initiated the violence" and "engaged in a pattern of abusive behavior which emotionally distressed their child by physically and verbally abusing and disparaging the [father] in front of the child and by initiating serious incidents of abuse toward the [father] in front of the child." The judge found it concerning that the mother "fail[ed] to take responsibility for her actions"; refused to cooperate with the guardian ad litem (GAL) and the Department of Children and Families (DCF); refused to participate in early intervention and "to accept feedback from various professionals who have been involved in this matter"; failed to visit the child consistently; during the visits she did attend, displayed a "lack of engagement" and "lack of routine and diaper changes that distressed the child"; and "failed to recognize the damage to the child from witnessing violence and going for extended periods without seeing her mother." In addition, the judge credited the GAL's testimony "that there was no observable improvement in the [m]other's ability to control her emotions toward the [father] during the course of these proceedings."

In contrast, the judge found that the father cooperated with the GAL and DCF, participated in early intervention, took the child to pediatrician's appointments, met with her teachers, and "consistently attended to and met the child's needs and ha[d] fostered and encouraged a positive relationship between the [mother] and the child." The judge credited the GAL's testimony that "the [father] and the child looked comfortable and at ease with each other." The judge also expressly took into account evidence of the father's parental shortcomings, including the abuse he perpetrated against the mother, his gambling problems, and his "limited coping skills when faced with ... conflicts [with the mother,] which have at times impacted the child." Despite these shortcomings, however, the judge found that the father "has provided the child with a calm stability and focused assistance on her medical, educational and other needs" and "has made good and healthy choices for the child."

Faced with this evidence, and with evidence that the parties could not effectively communicate with each other about the child, the judge concluded that the child's best interests would be best served by placing custody with the father and, for the time being, limiting the mother to supervised visitation. "Absent clear error, we will not substitute our weighing of the evidence for that of a trial judge who had the opportunity to observe the witnesses and form conclusions about their credibility...." B.B.V., 68 Mass. App. Ct. at 18-19, quoting A.H. v. M.P., 447 Mass. 828, 830 (2006). We discern no such clear error and no abuse of discretion in the judge's conclusions regarding the child's best interests.

We also discern no merit in the mother's other miscellaneous arguments. Though the mother contends that the judge improperly relied on the GAL's assessment of the parties' credibility, it is plain from the judge's findings that she independently analyzed the evidence and made her own credibility determinations. We further reject the mother's assertion that the judge did not consider evidence showing that the child had dropped in weight and height while she was in the father's care. The judge found that the child was of "average weight and height" and rejected the wife's claim that the child was not where she should be for her age. Finally, to the extent the mother is challenging the financial aspects of the judgment, she has failed to present adequate appellate argument as to those issues.

The mother's appeal from the order entered January 7, 2016, denying her motion for relief from the temporary custody order, is dismissed as moot. The judgment of divorce is affirmed.

So ordered.

Affirmed.

      We dismiss as moot the mother's separate appeal from an order denying her motion for relief from a temporary custody order. Because a final judgment of divorce has entered, the temporary custody order, along with the order denying the mother's motion for relief from that order, are no longer subject to review. See R.R. v. M.H., 426 Mass. 501, 502 (1998) ; Kendall v. Kendall, 426 Mass. 238, 239 n.2 (1997) ; Adoption of Roni, 56 Mass. App. Ct. 52, 58 (2002).

      The mother states, with no further explanation, that the judge "ignored the great disparity in earnings and earning capacity of the parties."


text:
    COMMONWEALTH v. Charles YOUNG.
    17-P-1119
    Appeals Court of Massachusetts.
    Entered: November 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a Superior Court jury trial, the defendant was convicted of distribution of heroin and two cocaine offenses. On appeal the defendant argues only that the evidence was insufficient to sustain the heroin conviction, because the chemist who tested the substance did not testify and no certificate of analysis of the heroin was admitted in evidence.

The issue arises because at trial, a chemist employed by the State Police crime laboratory (lab), Sarah Clark, testified that another chemist at the lab had tested the substance received in relation to the alleged heroin offense and created a certificate of analysis for that substance. Because that chemist was no longer employed at the lab at the time of trial, Clark explained that she reviewed that chemist's bench notes, testing data, and certificate of analysis, along with the peer review notes of the chemist's conclusions.

With respect to the specific testing of the substance, Clark explained that it was subjected to both an ultraviolet spectrophotometry test and a gas chromatography mass spectrometry test. She further explained that as part of this testing, the instruments produce graphs of the results. By examining such graphs and applying her training and experience, Clark testified that she could determine whether a particular substance is present. Over objection, Clark testified that in her opinion, the substance contained heroin.

On appeal, the defendant argues that because Clark did not personally conduct the tests or examine the substance, and did not produce a certificate of analysis, her opinion is insufficient to establish that the substance contained heroin. But "[o]ur law allows a [chemical analyst], who did not himself conduct the relevant tests, to testify to his own opinion based on the data generated by the nontestifying analyst." Commonwealth v. Grady, 474 Mass. 715, 723-724 (2016), citing Commonwealth v. Greineder, 464 Mass. 580, 603, cert. denied, 571 U.S. 865 (2013). Clark's testimony was therefore sufficient. The identity of a substance need not be proven in any particular manner. See Commonwealth v. MacDonald, 459 Mass. 148, 153-154 (2011) ; Commonwealth v. Dawson, 399 Mass. 465, 467 (1987).

Judgments affirmed.

      The cocaine offenses, distribution and distribution near a public park, occurred on March 1, 2014, and the heroin offense occurred on April 23, 2014. The defendant was acquitted of a cocaine offense allegedly occurring on March 14, 2014.

      The defendant makes an identical argument with respect to the March 14 cocaine charge, but, because he was acquitted of that charge, we need not consider the argument. Additionally, because the defendant's notice of appeal encompassed the March 1 cocaine convictions but he makes no argument with respect to them, we affirm them without further discussion.

      The defendant makes no argument that, because Clark also reviewed the nontestifying analyst's certificate of analysis, his Federal or State constitutional rights to confront witnesses were violated, or that the result here should be different from that in Grady and Greineder.


text:
    ADOPTION OF KHALEESA.
    18-P-727
    Appeals Court of Massachusetts.
    Entered: November 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The father appeals from a decree issued by a judge of the Juvenile Court terminating his parental rights to his daughter, Khaleesa, and approving a plan for adoption. On appeal, the father asserts that the judge's subsidiary findings do not support the ultimate finding of unfitness. We affirm.

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

Khaleesa was removed from the home at the age of two months. After efforts to reunify failed, the Department of Children and Families (department) changed its plan to adoption. The gravamen of the father's appeal is that he had been working hard to make a home for Khaleesa, and that the department improperly took advantage of temporary interruptions in that plan to terminate his parental rights. He claims that the judge's subsidiary findings mischaracterize the facts and do not amount to clear and convincing evidence of unfitness.

For example, the father points out that the judge found that the father had a history of housing instability after Khaleesa's birth. The father had moved several times for a variety of reasons. He was living with his grandfather when he was incarcerated for three months as a result of the mother's allegations of domestic violence, allegations later deemed to be untrue. After his release, the father went on to find employment and other housing.

The father contends that he should not be faulted for being the victim of a false accusation, and should be credited for his subsequent efforts to get back on his feet. This argument misses the mark, however. The judge found the facts as stated above, but did not lay blame for that move on the father. Rather, the judge looked to the father's inconsistent efforts in a number of areas to provide a home for Khaleesa, and in particular focused on the father's inability to end his relationship with the mother. The judge's finding of unfitness rests primarily on the father's inability to separate from the mother and make a safe home for Khaleesa without her.

The mother did not appear at trial, and she has not appealed from the judge's decision terminating her parental rights. The mother has a long history of substance abuse, including abuse of prescription medications and heroin, and severe depression. The department first took custody of Khaleesa when the mother overdosed after bringing Khaleesa, then two months old, to see the father. The mother had been hospitalized multiple times, stated her intention to die by suicide, was in and out of drug treatment, was terminated from drug treatment programs for noncompliance, and was inconsistent in taking her prescribed medications.

The father repeatedly called the department stating that the mother was high, uncontrollable, and a danger to Khaleesa. He reported, for example, that when she was suicidal, the mother said that Khaleesa would be better off without her. She has asked him to buy drugs for her after learning she was pregnant with another child. He sought the department's assistance in having her involuntarily committed.

The father, however, continued to see the mother, even after she caused him to be incarcerated. The department told the father that he had to separate from the mother or risk the loss of parental rights to Khaleesa. He did not terminate the relationship. At the time of trial she was pregnant with another child. The judge deemed the father's inability to extricate himself from the mother to be contrary to the best interests of Khaleesa.

The father maintains that the judge's findings contained an implicit and unfair requirement that he choose between the child and attempting to assist the child's mother and maintain a family unit. The department's directive and the judge's findings and conclusions were not implicit, they were explicit. By prioritizing the mother's welfare over that of the child, the father did not act in the child's best interests. See Adoption of Larry, 434 Mass. 456, 467-468 (2001).

Other factors were also properly considered by the judge. The father objects to the judge's consideration of a conviction of assault and battery arising out of an incident five years earlier when the father assaulted and choked his former wife. The judge was obligated to make "detailed and comprehensive findings of fact [regarding] domestic violence and its effect upon the child as well as upon the father's parenting ability" (quotation omitted). Custody of Vaughn, 422 Mass. 590, 599 (1996). Although there were no other reported incidents of domestic violence since that time, the father had also failed to complete batterer's intervention classes. Once he completed parole for the offense involving his former wife, the father also stopped going to counseling or individual therapy, contrary to his service plans. The judge was permitted to take the conviction and the failure to complete batterer's intervention classes or attend counseling into consideration when weighing the evidence. See Care & Protection of Lillith, 61 Mass. App. Ct. 132, 142 (2004) ("although the evidence of domestic violence in this case may be dated, and in part disputed, it was sufficient to require the express consideration of the issue"). It was for the judge to determine whether the evidence was stale or probative. See id. Given the past history of aggressive behavior, and the failure to complete treatment, the judge did not abuse her discretion.

Finally, the father did not appear for trial, and the judge drew an adverse inference from his absence. "Where a parent has notice of a proceeding to determine his parental rights and the parent does not attend or provide an explanation for not attending, the absence may suggest that the parent has abandoned his rights in the child or cannot meet the child's best interests." Adoption of Talik, 92 Mass. App. Ct. 367, 371-372 (2017). Although this inference, alone, would not be sufficient to meet the department's burden of proof, id., the father's abandonment of his rights supports the judge's overall finding that the father was not a reliable caregiver who could act in the best interests of the child.

The judge's finding of unfitness was supported by the evidence, and the judge committed no abuse of discretion or error of law.

Decree affirmed.

      The mother also broke into his apartment several months later. He called his parole officer and the police, and the department encouraged him to obtain a restraining order. He did not seek one.

      The judge found that the father had moved several times, occasioned in part by his inability to make enough money as a construction worker to stay in an apartment with his cousin or obtain other suitable housing. The department suggested he apply for public housing. The evidence is unclear, and the judge made no findings, as to whether he was eligible for public housing as a parolee. The department had urged him to apply and appeal if he was denied. He did not apply. The failure to follow through on making an application may be some further evidence of the father's inconsistency in completing tasks necessary to providing a stable home, but we do not, on this record, rely on the failure to obtain publicly supported housing in affirming the decree.

      There was some conflicting testimony on this point, but the judge found that the father was the parent of the new baby (who is not involved in these proceedings), and that the father had attempted to reconcile with the mother.

      The father had been arrested for assault and battery, disorderly conduct, and resisting arrest, among other charges, and was the subject of three other restraining orders. His service plans required both batterer's intervention classes and individual therapy to "address his past history of assault and battery and learn effective coping skills."

      The father had also failed to appear for scheduled visits. In the two months before trial, there were nine missed visits, two of which were unexplained. On many occasions the father missed visits due to conflicts with his job in the construction industry. The father claims, understandably, that he had an obligation to keep the job to provide for Khaleesa. However, the fact that the job itself carried with it a demanding schedule only underscores the risks associated with the father's decision to reconcile with the mother.


text:
    COMMONWEALTH v. Michael ROACH.
    18-P-648
    Appeals Court of Massachusetts.
    Entered: November 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the District Court, the defendant, Michael Roach, was convicted of negligent operation of a motor vehicle and acquitted of operating while under the influence of alcohol (OUI). On appeal, the defendant argues (1) the evidence was insufficient to sustain the conviction; and (2) a jury instruction on negligent operation should include the requirement that the offense occur within an "ascertainable proximity to another person," and the failure to include such a requirement here was error. We conclude that the evidence was sufficient to sustain the conviction and that the jury were correctly instructed, and therefore affirm.

Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. At about 1:30 A.M. on Sunday, November 21, 2015, after attending a party, the defendant was driving in an area in which there was at least one business, an East Longmeadow police officer on routine patrol, and very light traffic. Officer Healey observed the defendant's vehicle veer into the opposite lane of travel before being "jerk[ed]" back into the correct lane. The defendant also markedly accelerated and decelerated his speed and, when signaled to stop by Healey, drove onto the curb, parked his vehicle at a forty-five degree angle to the roadside, failed to move his vehicle despite the officer's instructions, and failed to produce his registration or proof of insurance. Evidence of excessive alcohol consumption included bloodshot glassy eyes, slurred speech, lack of balance, difficulty following directions, and poor performance on three field sobriety tests.

Discussion. 1. Sufficiency of the evidence. To prove negligent operation of a motor vehicle under G. L. c. 90, § 24 (2) (a ), the Commonwealth must prove that the defendant (1) operated a motor vehicle (2) upon a public way (3) negligently so that the lives or safety of the public might be endangered. Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379 (2017). On appeal the defendant limits his challenge to proof of the third element. The defendant's repeated erratic operation of his vehicle at night, constituting more than a single momentary lapse of attention, increased the probability of a collision with objects, whether natural, man-made, or human, that may have come within his path. See Commonwealth v. Campbell, 394 Mass. 77, 83 n.5 (1985) ("violation of a statute, such as the one governing the speed limit, is not negligence per se, [but] it can validly be considered, in combination with other evidence, in determining negligence"). See also Ross, supra at 380; Commonwealth v. Sousa, 88 Mass. App. Ct. 47, 51 (2015). In addition, "[t]he fact that the jury ultimately did not convict the defendant of OUI does not[, contrary to the defendant's contention on appeal,] preclude their consideration of the evidence of intoxication in considering the negligent operation charge." Ross, supra. Rather, "especially in light of the defendant's intoxication, a reasonable jury could conclude that he acted negligently." Id. at 380-381.

2. Jury instruction. In this case, the judge's instruction to the jury on negligent operation tracked Instruction 5.240 of the Criminal Model Jury Instructions for Use in the District Court (2009) in all material respects. The defendant argues however, for the first time on appeal, that the instruction ought to include a requirement of "proximity to endangerment, [specifically] ... possible contact with human beings" and that its failure to do so is error. To the extent the request is to ignore prior precedent, we have no authority to do so. See Commonwealth v. Constantino, 443 Mass. 521, 526-527 (2005) ; Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 33-36 (2007). See also Commonwealth v. Dube, 59 Mass. App. Ct. 476, 484-485 (2003).

Judgment affirmed.

      The judge ruled that the civil marked lanes infraction had been subsumed by the negligent operation conviction and entered a not responsible on that offense.


text:
    COMMONWEALTH v. Braulio DEJESUS.
    17-P-1106
    Appeals Court of Massachusetts.
    Entered: November 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Braulio DeJesus, was convicted by a jury of carrying a dangerous weapon, to wit, metallic knuckles, in violation of G. L. c. 269, § 10 (b ). After a separate jury-waived trial, the defendant was convicted of carrying a dangerous weapon as a subsequent offense. The defendant raises two sufficiency challenges on appeal.

First, the defendant argues that the evidence was insufficient to establish that the metallic knuckles admitted at trial qualified as a dangerous weapon. But G. L. c. 269, § 10 (b ), identifies a number of weapons that are specifically prohibited, including "metallic knuckles or knuckles of any substance which could be put to the same use with the same or similar effect as metallic knuckles." Contrary to the defendant's contention, because the item in question was admitted as an exhibit, the jury could conclude based on their own observations whether it fell within this statutory category. See Commonwealth v. Fancy, 349 Mass. 196, 204 (1965) ; Commonwealth v. Stallions, 9 Mass. App. Ct. 23, 25-26 (1980).

Second, the defendant argues that the evidence was insufficient to establish that he "carried" the metallic knuckles. " '[C]arrying' a [weapon] occurs when the defendant knowingly has more than momentary possession of a [weapon] and moves it from one place to another." Commonwealth v. Seay, 376 Mass. 735, 737 (1978). The evidence here, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), established this element of the offense. An officer observed the defendant walking on the sidewalk next to a hotel for about twenty-five seconds. As the officer continued to watch, the defendant went to the rear passenger tire of a parked vehicle, bent down, moved his hand toward the tire, and stood back up and resumed walking. The officer then looked under the vehicle in the precise spot where the defendant had bent down and discovered a set of brass knuckles stuffed under the tire. There were no other people near the vehicle and only one other person in the parking lot, "at the farthest end" from where the vehicle was parked. Based on this evidence, a reasonable jury could find that the defendant "carried" the weapon.

Judgments affirmed.

      The defendant did not move for a required finding of not guilty on this basis. In fact, defense counsel conceded in his opening statement that the item in question, a set of "brass knuckles," was a dangerous weapon. Nonetheless, we will consider the defendant's challenge because a conviction based on insufficient evidence inherently presents a substantial risk of a miscarriage of justice. See Commonwealth v. Joyner, 467 Mass. 176, 180 (2014).


text:
    X.Z. v. H.D.
    18-P-1
    Appeals Court of Massachusetts.
    Entered: November 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A judge of the Superior Court dismissed, without prejudice, a complaint brought by X.Z. against his wife, H.D. The motion judge dismissed the case on the basis that the complaint was a restatement of an action previously filed in 2014. See Mass. R. Civ. P. 12 (b) (9), as amended, 450 Mass. 1403 (2008). We affirm.

" Rule 12(b)(9) provides for the dismissal of a second action in which the parties and the issues are the same as those in a prior action still pending in a court of this Commonwealth. The rule prohibits the long-barred practice of claim-splitting." (Footnote omitted.) Lyons v. Duncan, 81 Mass. App. Ct. 766, 770-771 (2012), quoting M.J. Flaherty Co. v. United States Fid. & Guar. Co., 61 Mass. App. Ct. 337, 339 (2004). Rule 12 (b) (9) permits dismissal where a prior action involving the same issues is pending between the same parties. Id.

X.Z., proceeding pro se, claims that the judge made a mistake because the two cases were factually distinct in the sense that they cover different time periods, and that dismissal was therefore unwarranted. Whether the difference in the time periods is enough to state a legally separate claim is a question that can only be decided upon careful review of the 2014 record. The motion judge was also the trial judge in the 2014 case and was therefore intimately familiar with the nature of the allegations of the 2014 case. X.Z. has not, however, provided a record of the 2014 case to this court. The record we have does not contain anything other than the first page of the 2014 complaint. We cannot consider the substance of the husband's appeal because he has failed to provide an adequate record appendix in compliance with Mass. R. A. P. 18 (a), as amended, 425 Mass. 1602 (1997). See Kunen v. First Agric. Nat'l Bank, 6 Mass. App. Ct. 684, 685-689 (1978). The judgment is affirmed on this basis. See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) ; Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 810-812 (1992).

Judgment affirmed.

      "Although he [is] acting pro se, he nevertheless [is] bound to comply with the governing court rules." Rothman v. Trister, 450 Mass. 1034, 1034 (2008).


text:
    COMMONWEALTH v. Luis FIGUEROA.
    18-P-39
    Appeals Court of Massachusetts.
    Entered: November 9, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Luis Figueroa, appeals from his convictions following a jury trial in the Superior Court of operating a motor vehicle under the influence of intoxicating liquor, G. L. c. 90, § 24 (1) (a ) (1), and negligent operation, G. L. c. 90, § 24 (2) (a ) ; and his conviction, following a jury-waived trial, of operating a motor vehicle while under the influence of intoxicating liquor after his license was suspended or revoked for operating under the influence of intoxicating liquor, G. L. c. 90, § 23. We conclude that the judge's breathalyzer instruction to the jury was not prejudicial to the defendant given the overwhelming evidence of the defendant's intoxication. As we further conclude that the judge did not need to give an instruction on police officer opinion regarding field sobriety tests and that the Commonwealth made a permissible, reasonable inference in its closing argument, we affirm.

1. Breathalyzer instruction. When a defendant raises a timely objection to a jury instruction, we review for prejudicial error. See Commonwealth v. Allen, 474 Mass. 162, 168 (2016). "We determine 'whether the instructions were legally erroneous, and (if so) whether the error was prejudicial.' " Id., quoting Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 310 (2009). For the purpose of this appeal, we treat the judge's objected-to jury instruction mentioning the absence of breathalyzer evidence as error. See Commonwealth v. Wolfe, 478 Mass. 142, 150 (2017) (instruction regarding absence of alcohol-test evidence given over defendant's objection constitutes error). Nonetheless, under the circumstances of this case, "the error was not prejudicial, because it 'did not influence the jury, or had but very slight effect.' " Commonwealth v. Sullivan, 478 Mass. 369, 377 (2017), quoting Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

Here, the evidence of the defendant's impaired operation was overwhelming. The defendant offers his diagnosis of inflammatory arthritis as an explanation for the evidence of his impairment, in particular his performance on the field sobriety tests. The defendant's medical condition, however, is not an explanation for the majority of the evidence of impairment presented. Contrast Wolfe, 478 Mass. at 150 (defendant had plausible explanation for crossing double yellow line to avoid hitting snowbank and using vehicle to steady himself as caution against icy road). Even at its worst, several weeks before the incident, the defendant's arthritis impacted his walking in the morning "because of the pain and stiffness." The stop occurred around 9 or 10 P.M.

In any event, even if the defendant's medical condition was responsible for his performance on the field sobriety tests, his condition does not explain the defendant's erratic driving, appearance, and demeanor. An officer observed the defendant's vehicle speeding in the left-hand lane, and then decelerating abruptly to avoid striking the vehicle in front of it. The defendant's vehicle then moved from the left-hand lane to the center lane without signaling, nearly striking a vehicle in the center lane. Immediately upon being pulled over, the defendant was "argumentative." A strong odor of alcohol was coming from the vehicle and from the defendant himself after he got out of the vehicle. The defendant's eyes were "glossy" and "bloodshot," and his speech was slurred. Even when seated on a guardrail, the defendant was "unsteady" and "swaying." The defendant repeatedly "verbaliz[ed] his need to urinate." One officer observed that the defendant's pants were unzipped and wet in the groin area. Finally, when the officers attempted to escort the defendant to the police cruiser, he resisted by "pushing against" the officers, despite his medical condition and alleged immobility. Given this evidence of the defendant's impaired operation, the judge's instruction regarding the absence of a breathalyzer test did not prejudice the defendant. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390-391 (2017) (no prejudice even if lay opinion was improperly admitted because evidence of defendant's glassy, bloodshot eyes; slurred speech; and failure to follow officer's instructions supported jury's conclusion that defendant had diminished capacity).

2. Lack of jury instruction on police officer lay opinion. There is no case law requiring a judge to instruct that a police officer's opinion of a defendant's field sobriety test performance is not an expert opinion. Accordingly, the officer's opinion that the defendant "didn't do very well" on one of the field sobriety tests was admissible as a lay opinion, and no additional jury instruction was required. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013) (lay witness may testify to defendant's apparent intoxication). Furthermore, because the defendant did not request such an instruction at trial, we "determine whether any error ... created a substantial risk of a miscarriage of justice." Commonwealth v. Horne, 476 Mass. 222, 226 (2017), quoting Commonwealth v. Zimmerman, 441 Mass. 146, 150 (2004). Given the overwhelming evidence of the defendant's intoxication, there was no such risk.

3. Closing argument. "Closing argument must be limited to discussion of the evidence presented and the reasonable inferences that can be drawn from that evidence." Commonwealth v. Rakes, 478 Mass. 22, 45 (2017). "Counsel may, however, zealously argue in favor of those inferences favorable to his or her case." Id. During closing argument, the Commonwealth argued that the defendant urinated in his pants. Given the evidence presented at trial that the defendant's pants were unbuttoned, his fly was down, his pants were wet in "his groin area," and he repeatedly verbalized his need to urinate, this inference was reasonable. See Commonwealth v. Bois, 476 Mass. 15, 32 (2016) (prosecutor properly argued for inference that defendant intended to steal where defendant broke into house and removed items that were later found in his possession).

Judgments affirmed.

      After being found guilty of all three charges, the defendant pleaded guilty to the fifth offense portion of the operating a motor vehicle under the influence of intoxicating liquor charge.

      At oral argument, the Commonwealth conceded that we should apply Wolfe to this case, even though the trial occurred prior to the opinion in Wolfe. See Wolfe, supra at 150 ("Because the defendant objected at trial and argued for this rule on direct appeal, he should have the benefit of this decision, which otherwise shall apply only prospectively"). We accept the Commonwealth's concession, without deciding whether Wolfe would apply otherwise.

      The defendant's medical records show that his condition improved approximately six weeks before the crime. At that time, the defendant's doctor recorded that his "[h]ips, knees, ankles, and MTPs are without tenderness or limitations." Approximately four weeks before the crime, the defendant's wife reported to his doctor that the defendant's pain was "not as bad."

      The defendant stipulated to essential elements of the charged offenses: operating a motor vehicle and having had his license suspended or revoked for operating under the influence. Contrary to the requirements of Mass. R. Crim. P. 23 (a), 471 Mass. 1501 (2015), the judge declined the parties' offer to submit the stipulation in writing. As the defendant does not raise this as an issue on appeal and there is no discernable prejudice, the procedural error does not impact our decision today. See Commonwealth v. Gentle, 80 Mass. App. Ct. 243, 252 (2011). Judges and litigants, however, are reminded that stipulations to essential elements in a criminal case must be in writing and signed by the prosecutor, defendant, and defense counsel. See Mass. R. Crim. P. 23 (a).


text:
    Todd J. BENNETT v. Kerri Beth Aaron BENNETT.
    17-P-1494
    Appeals Court of Massachusetts.
    Entered: November 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The father, Todd J. Bennett, appeals from a judgment from the Middlesex Probate and Family Court granting the request of the mother, Kerri Beth Aaron Bennett, request to remove the parties' two children to Florida and ordering the father to pay one-half of the mother's student loan payments. We affirm.

Background. We begin with a brief summary of the facts, reserving other relevant facts for the discussion of the issues. After a five-day trial, the parties were divorced by a judgment of divorce nisi. The judge made 211 findings of fact, granting the parties joint legal custody of the children and physical custody to the mother, allowing her to remove the children to Florida. The judgment included a visitation plan for the father to travel to Florida and have parenting time with the children. The judge deducted the father's travel expenses from his child support payments. Neither party was ordered to pay alimony but the father was ordered to pay the mother $375 per month toward her student loan payment, until the loan is paid in full. The mother is responsible for the other one-half of her student loan payments.

Discussion. 1. Removal of the children. We review a judge's decision regarding the removal of a child for "abuse of discretion or other error of law," accepting the judge's findings unless shown to be clearly erroneous. Murray v. Super, 87 Mass. App. Ct. 146, 148 (2015).

Under G. L. c. 208, § 30, a minor child who is under the "suitable age to signify his consent" cannot be removed from Massachusetts "without the consent of both parents, unless the court upon cause shown otherwise orders." This has been interpreted to mean that the removal must be in the "the best interests of the child." Miller v. Miller, 478 Mass. 642, 647 (2018). When a parent with primary physical custody is seeking removal, the court first considers whether there is a "real advantage" for the move, then considers whether the move is in the best interests of the children. Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985). Here, the judge properly applied the Yannas test.

a. Real advantage to the mother. The real advantage test is satisfied when the custodial parent shows "the soundness of [her] reason for moving, and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation." Id. The record supports the judge's findings that the mother has a real advantage in moving to Florida. Where both parties have family residing in Florida, the mother has a large support network there, compared to Massachusetts where she has no one to support her and help take care of the children. See Altomare v. Altomare, 77 Mass. App. Ct. 601, 607-608 (2010) (emotional support is sincere reason for relocation). The mother also has job opportunities in Florida, a plan for where she will live, and will be able to provide the children with the same financial security and lifestyle that they had in Massachusetts. Notwithstanding her efforts, the mother does not have any job prospects in Massachusetts. Therefore, there is ample support in the record that the mother has a real advantage in removal. See Murphy v. Murphy, 82 Mass. App. Ct. 186, 190-191 (2012) (real advantage to mother where she wishes to be closer to family and has job opportunity).

"We also note that there is no evidence that [the mother] seeks the move in order to deprive [the father] of access to his children." Altomare, 77 Mass. App. Ct. at 608. Although some of the mother's actions noted by the father may show that the mother is overprotective of the children, we agree with the judge's findings that they do not rise to the level of interfering with the father's time or relationship with the children. See Woodside v. Woodside, 79 Mass. App. Ct. 713, 719 (2011) ("mother was not motivated by an intent to deprive the father of his relationship with their two [children]").

b. Best interests of the children. The judge also properly weighed factors affecting the best interests of the children. To determine the best interests of the child, the judge looks to a number of factors "collectively." Yannas, 395 Mass. at 712. These factors include:

"(1) whether the quality of the children's lives will be improved, including any improvement that 'may flow from an improvement in the quality of the custodial parent's life'; (2) any possible 'adverse effect of the elimination or curtailment of the child[ren]'s association with the noncustodial parent'; (3) 'the extent to which moving or not moving will affect the [children's] emotional, physical, or developmental needs'; (4) the interests of both parents; and (5) the possibility of an alternative visitation schedule for the noncustodial parent."

Murray, 87 Mass. App. Ct. at 150, quoting Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 447 (2006).

The judge found that, like the mother, the children will benefit from the move to Florida. See Woodside, 79 Mass. App. at 719 ("the move would result in an improvement in the mother's quality of life that in turn would benefit the children"). The children are close with their family in Florida and have spent at least three months out of the year there. See Murphy, 82 Mass. App. Ct. at 192-193 (relocation to New York was in best interests of child where mother had real advantage in move and family resided in New York who could assist in child care).

c. Interests of the noncustodial parent. The judge also adequately considered the interests of the father as the noncustodial parent. Yannas, 395 Mass. at 711. Contrary to the father's argument, the judge did not ignore any evidence concerning his ability to have meaningful parenting time with his two children. The father has the means to visit the children in Florida and the judge set in place a visitation schedule for him. To allow the father more time with his children, the judge is allowing the father to opt out of taking them to their extracurricular activities during his visits. Although the father argues that this finding shows that the mother interferes with the father's parenting time, we agree with the mother that such finding is designed to provide the father with more time with his children during his visits. See Woodside, 79 Mass. App. Ct. at 720.

Lastly, the father's contentions that the judge did not adequately consider the mother's past behavior, terming it as "abusive," is without merit. The overprotective behavior of the mother cannot properly be termed as "abusive" and the judge noted that although the mother is "hyper-vigilant" with the children, her behaviors raise no concerns in regards to her parenting or the children's well-being. This is supported by statements from the mother's recent therapist, with whom she meets to cope with her divorce, that the mother has no mental health concerns and is psychologically sound.

In conclusion, where there is ample support in the record for the judge's decision to allow the mother's relocation request, there is no abuse of discretion. Accordingly, we decline to disturb that decision.

2. Student loan payments. General Laws c. 208, § 34, governs the equitable division of marital property. See Kittredge v. Kittredge, 441 Mass. 28, 37-38 (2004). The "ultimate goal" is "an equitable, rather than an equal, division of property." Williams v. Massa, 431 Mass. 619, 626 (2000). In reviewing the judge's determination, we consider whether the judge weighed the § 34 factors and "whether the reasons for the judge's conclusions are 'apparent in his findings and rulings.' " Adams v. Adams, 459 Mass. 361, 371 (2011), quoting Redding v. Redding, 398 Mass. 102, 108 (1986). As long as the judge considers all the relevant § 34 factors together, giving each the weight the judge deems appropriate, "a judge's determination on the equitable division of marital property will not be disturbed." Williams, supra at 631.

In addition to the finding relied on by the father, that "the parties should be equally responsible for the re-payment [sic ] of these loans especially where the [c]ourt is attributing income to the [m]other," the judge made other findings regarding the required § 34 factors. See Williams, 431 Mass. at 626 ; Bowring v. Reid, 399 Mass. 265, 267 (1987). The judge made findings concerning the parties' student loans and how the father's loans have been paid off while the mother's have not. The judge also considered the mother's contributions as a caretaker for the parties' children, and the husband's financial contributions. See Moriarty v. Stone, 41 Mass. App. Ct. 151, 157 (1996) ("The parties' respective contributions to the marital partnership remain the touchstone of an equitable division of the marital estate"). The judge also considered the father's use of substantial sums of money during the marriage for his own purposes, without the mother's knowledge, specifically finding that the father "failed to be fully transparent with the mother when it came to the parties' finances." Accordingly, we cannot say that the judge abused his discretion in establishing the liabilities of the parties concerning the student loan debts. See Caldwell v. Caldwell, 17 Mass. App. Ct. 1032, 1034 (1984).

3. Attorney's fees. The mother's request for attorney's fees incurred in connection with this appeal is denied.

Judgment affirmed.


text:
    COMMONWEALTH v. Shekia BROWN.
    17-P-1222
    Appeals Court of Massachusetts.
    Entered: November 8, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant of the lesser included offense of unarmed robbery on two indictments charging armed robbery while masked. On appeal the defendant argues that the evidence was insufficient to support her convictions and that the trial judge erred in failing to ask a juror an agreed-upon question during empanelment. We affirm.

Background. We summarize the evidence, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant lived on the second floor of a three-family home in Brockton. Michelle Macchi lived on the first floor with her boy friend Rafael DeJesus, her teenage daughter Brittany Garney, and Garney's boy friend Rakeem Tubbs. Macchi regularly used "crack" cocaine, which the defendant sometimes provided.

A few days before the robbery, the defendant supplied Macchi with crack cocaine, and Macchi promised to pay $250 in return. Around 8 P . M . on the day of the robbery, Macchi brought one hundred dollars upstairs to the defendant, and they agreed that she would pay the rest later that week. A short time later, however, the defendant knocked on Macchi's back door. When DeJesus answered, the defendant and three masked men pushed their way into the apartment. Once inside, the defendant directed the men to Garney's bedroom. One man kicked open the locked bedroom door, knocking it off its hinges. The defendant ordered the men to take "the good stuff," meaning the television and laptop computer, as Garney cried hysterically and begged the defendant to stop. The defendant was leading the men and showing them where to look.

When Garney refused to hand over the laptop, one man put a knife to her throat and ripped the laptop out of her hands. Meanwhile, Tubbs struggled with another man to prevent him from taking the television, but let go of it upon seeing the first man draw a knife. Tubbs also saw one of the men flash a firearm. The defendant and the men eventually left the apartment with the laptop and the television.

Discussion. 1. Sufficiency of the evidence. We review the evidence in the light most favorable to the Commonwealth to determine whether any "rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt." Commonwealth v. Mendez, 476 Mass. 512, 523 (2017). The Commonwealth proceeded against the defendant on a theory of joint venture, which required it to prove that she "knowingly participated with [her coventurers] in the commission of [an] [un]armed robbery and shared the necessary intent for the crime." Commonwealth v. Benitez, 464 Mass. 686, 689 (2013). The substantive crime of unarmed robbery required proof that the defendant robbed the victims "by force and violence, or by assault and putting in fear." G. L. c. 265, § 19 (b ).

The defendant argues that the Commonwealth failed to prove that she knew or intended that the men would take the victims' possessions either by force or by assault. We disagree. The evidence here was sufficient to establish robbery by assault. Assault in this context means "objectively menacing conduct by the defendant, ... undertaken with the intent to put [the victim] in fear for the purpose of stealing," which "resulted in reasonable fear or apprehension on [the victim's] part and thereby facilitated the theft." Commonwealth v. Davis, 70 Mass. App. Ct. 314, 316 (2007). See Commonwealth v. Gauthier, 21 Mass. App. Ct. 585, 591 (1986). The defendant brought masked men to the apartment in an obvious show of intimidation to put the victims in fear, had the men kick down the bedroom door, and told them what to take. Garney testified that she was "scared" and "[i]n shock." Based on this evidence, a reasonable jury could have found that the defendant had the knowledge and intent to rob by assault. See Davis, 70 Mass. App. Ct. at 314-316 (sufficient evidence to find robbery by assault where defendant entered bank wearing baseball cap, black glasses, and scarf over his mouth, approached teller's window, and patted his sweatshirt indicating something was in it).

The evidence was also sufficient to establish robbery by force. In a videotaped police interview, which was played for the jury, the defendant stated that she assumed that the men were armed with a knife or a gun. Moreover, the snatching of the laptop and the struggling over the television qualify as use of force. See Commonwealth v. Jones, 362 Mass. 83, 89 (1972) ("Snatching necessarily involves the exercise of some actual force"). Though the defendant asserts that she had left the room by the time these acts occurred, a reasonable jury could have inferred that she knew that people who are about to be robbed might not willingly hand over their possessions. Likewise, the jury could have inferred that the defendant intended that her masked and armed accomplices take the laptop and television whether or not the victims parted with them willingly. See Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 643 (2003) ("jury may apply their own 'common sense' " in evaluating evidence).

2. Jury empanelment. During voir dire defense counsel requested that the judge ask the following question: "The defendant is not accused of any drug offenses but if you heard evidence that the defendant used drugs or was involved in their distribution, would that affect your ability to render a fair, impartial and just verdict on the charges for which she is accused?" After the prosecutor stated that he had no objection, the judge posed the question to every member of the venire except juror 19. The judge did ask juror 19 whether her experience as a witness in a criminal case -- which juror 19 described as a case involving "[a]n addict" who "stole money" -- would impair her ability to be fair and impartial. Juror 19 answered, "[N]o," the judge found that she was impartial, and defense counsel consented to her placement on the jury.

The defendant now argues that the judge's apparently inadvertent failure to ask juror 19 the agreed-upon question violated G. L. c. 234A, § 67A, which provides that, upon a party's motion, a judge "shall" question a juror if it appears that an extraneous issue is likely to influence his or her opinion of the case. But G. L. c. 234A, § 74, states that "any defect in any procedure performed under this chapter shall not be sufficient to cause a mistrial or to set aside a verdict unless objection to such irregularity or defect has been made as soon as possible after its discovery or after it should have been discovered and unless the objecting party has been specially injured or prejudiced thereby." Here, because the defendant consented to juror 19's being seated, she has waived her objection. See Commonwealth v. Barnoski, 418 Mass. 523, 532 (1994) ; Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 372-373 (2014).

Judgments affirmed.

      The defendant was also charged with armed home invasion (four indictments) and intimidation of a witness (one indictment). The trial judge allowed the defendant's motion for a required finding of not guilty on one indictment charging armed home invasion, and the jury acquitted the defendant of the remaining charges.

      At some point, it is unclear precisely when, the defendant left Garney's bedroom. On the view we take of the case, we will assume that she left before the men used weapons.

      Consistent with the statute, the judge instructed the jury that the Commonwealth had to prove "that the defendant either applied actual force and violence to the body of the victim or by threatening words or gestures put the victim in fear." The defendant does not claim error in this instruction.

      The Legislature enacted G. L. c. 234A, § 67A, in 2016, and at the same time repealed (1) G. L. c. 234, § 28, which contained similar language, and (2) G. L. c. 234, § 32, which required a showing of prejudice "or" an "objection ... made before the verdict." Because G. L. c. 234A, § 67A, was the governing statute at the time of the defendant's trial, G. L. c. 234A, § 74 -- and its requirement of a timely objection -- also apply to this case.

      Contrary to the defendant's suggestion, because the right she asserts is statutory, her available remedies are also governed by the statute. See Commonwealth v. Jackson, 471 Mass. 262, 269-270 (2015) ; Oppenheim, 86 Mass. App. Ct. at 372-373.