text:
    COMMONWEALTH v. Anthony OLBROT.
    17-P-260
    Appeals Court of Massachusetts.
    January 10, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Anthony Olbrot, was convicted of operating a motor vehicle while under the influence of alcohol, leaving the scene of an accident causing property damage, and negligent operation of a motor vehicle. On appeal, the defendant contends that (1) the judge erred in denying his motion to suppress, and (2) there was insufficient evidence to support the convictions. We affirm.

1. Motion to suppress. The defendant argues that the judge erroneously denied his motion to suppress because the alleged misdemeanor was not committed in the presence of the arresting police officer. We affirm the judge's denial of the defendant's motion to suppress, albeit on grounds different from those articulated by the motion judge. See Commonwealth v. Cotto, 471 Mass. 97, 118 (2015), quoting from Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) ("An appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings").

"[W]e accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the judge's] ultimate findings and conclusions of law." Commonwealth v. Meas, 467 Mass. 434, 440 (2014) (quotation omitted). The defendant relies on the common-law rule concerning warrantless arrests for misdemeanors, which generally requires that the misdemeanor constituting a breach of the peace be committed in the presence or view of the officer, who must interrupt the conduct to effectuate the arrest. See Commonwealth v. Jewett, 471 Mass. 624, 629-630 (2015). Here, the officer did not see the defendant drive or hit the pole.

The judge relied on hot pursuit in denying the motion. We need not reach that issue, because the arresting officer was authorized to arrest the defendant by statute. See G. L. c. 90, § 21. "An officer 'authorized to make arrests' who is in uniform or conspicuously displaying his badge of office may arrest without a warrant any person who, the officer has probable cause to believe, has operated or is operating a motor vehicle while under the influence of intoxicating liquor." Commonwealth v. Howe, 405 Mass. 332, 334 (1989), quoting from G. L. c. 90, § 21.

We summarize the facts as found by the judge, supplemented by undisputed facts that she implicitly credited and that are consistent with her ruling. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015) ; Commonwealth v. Depiero, 473 Mass 450, 452 n.3 (2016). The responding police officers knew from a witness's report that a white Toyota Highlander had crashed into a pole. When Officer Victoria arrived on the scene he saw a white vehicle's bumper next to the pole. The witness then reported that the vehicle's license plate number was "1RNB30" and that the driver was an older man with white hair. After identifying a discrepancy in the plate number, one of the officers located a nearby address for a white Toyota Highlander. They went to the address and saw a white Toyota Highlander with a missing bumper in the driveway. Officer Victoria touched the hood of the vehicle, and it was still warm.

The officers spoke to the defendant, who admitted to crashing into the pole. The defendant claimed he drank two beers after arriving home some time earlier. However, the defendant's wife said that her husband had just arrived home. The defendant was aggressive, had an odor of alcohol, was unsteady on his feet, and his speech was slurred.

"An arrest is supported by probable cause, and therefore lawful, 'where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested had committed ... an offense' for which arrest is authorized." Commonwealth v. Cartright, 478 Mass. 273, 283 (2017), quoting from Jewett, 471 Mass. at 629. The evidence here was more than sufficient to establish probable cause to believe that the defendant was driving his car while under the influence of alcohol. See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994).

2. Sufficiency. The defendant claims that the evidence was insufficient to prove that he caused actual damage to the property of another, or that he operated a motor vehicle, much less operated a motor vehicle while under the influence of alcohol. Upon review, we look at the facts adduced at trial in the light most favorable to the Commonwealth and determine whether any rational trier of fact could have found that all elements of the crime had been proved. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

a. Operating under the influence of alcohol. The defendant contends that the Commonwealth did not produce sufficient evidence that the defendant was under the influence of alcohol at the time of the accident. The defendant admitted to drinking two beers when he arrived home. Yet, after his arrest and booking, he had a blood alcohol content of .17, more than twice the legal limit. When Officer Sheehy spoke with the defendant at his home, the officer observed that the defendant was unsteady, had bloodshot glossy eyes, had an odor of alcohol, appeared confused, and was loud, mumbling, and uncooperative. The Commonwealth sustained its burden of proof beyond a reasonable doubt that the defendant operated a motor vehicle while under the influence of alcohol. See Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 650 (2011).

b. Negligent operation."To obtain a conviction for negligent operation of a motor vehicle pursuant to 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). The defendant asserts that there is no evidence that he operated the car in a manner which may have endangered the public.

"Proof of operation of a motor vehicle may rest entirely on circumstantial evidence." Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006) (quotation omitted). The defendant admitted that he had driven the car and hit the pole while talking on his cellular telephone (cell phone). As discussed above, there was evidence from which a jury could conclude that he was intoxicated at the time of the accident. The jury could take into account the evidence of intoxication in considering the negligent operation charge. See Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256 (2006) ; Ross, supra at 380. The jury were permitted to draw the inference that the defendant drove in a negligent manner from the fact of the collision, his intoxication, and the distraction of the cell phone. See generally Daley, supra. Cf. Ross, supra.

c. Leaving the scene. The evidence was sufficient to permit a jury to conclude beyond a reasonable doubt that the defendant left the scene of an accident causing property damage. See Commonwealth v. Nutbrown, 81 Mass. App. Ct. 773, 774 n.2 (2012). The police responded to the scene to find a white bumper next to a damaged pole. After arriving at the defendant's home, the police noticed a white vehicle that matched a witness's description, with a missing bumper. The defendant admitted to crashing into the pole. The jury were permitted to infer that the defendant struck the pole, damaged it, and left the scene. Ibid.

The defendant argues that the Commonwealth could not rule out the possibility that the damage to the pole may have occurred long before the defendant hit it. This type of contention was specifically rejected in Nutbrown, supra ("[H]ere the jury could reasonably have inferred that the car accident caused damage to the guardrail even without evidence as to the prior state of the guardrail"). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713, cert. denied, 134 S. Ct. 2855 (2014).

The defendant's motion for a required finding of not guilty was properly denied.

Judgments affirmed.

      The motion judge's reference to a "Hyundai" in her findings of fact is clearly erroneous, but the error is immaterial.

      The actual plate number of the defendant's vehicle was "1RN830."

      Officers Sheehy and Victoria arrived at the defendant's home in marked police cruisers, a conspicuous display of the badge of office. See Howe, 405 Mass. at 334.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Gregory A. CARTER.
    17-P-271
    Appeals Court of Massachusetts.
    Entered: January 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from an order denying, in part, his motion for a new trial, premised on his request to withdraw his guilty pleas to charges of assault and battery by means of a dangerous weapon (count 3) and intimidating a witness (count 5). His motion argued that his pleas were not made intelligently because, during the plea colloquy, the prosecutor did not state sufficient facts to establish all elements of those offenses. The judge's ruling on such a motion is reviewed for abuse of discretion or prejudicial constitutional error. See Commonwealth v. Correa, 43 Mass. App. Ct. 714, 716 (1997). We affirm.

A plea judge "must determine by means of an adequate colloquy that the plea tendered is both intelligently and voluntarily made." Id. at 717. "A plea is intelligently made when the defendant has knowledge of the elements of the charges against him." Ibid.

"This requirement can be satisfied in one of several ways: (1) by the judge explaining to the defendant the elements of the crime; (2) by counsel's representation that she has explained to the defendant the elements he admits by his plea; or, (3) by the defendant's stated admission to facts recited during the colloquy which constitute the unexplained elements."

Ibid. Here, during the colloquy, the prosecutor recited the facts underlying the offenses, and the defendant admitted to those facts; he now claims the prosecutor's recitation was insufficient.

As to the charge of assault and battery by means of a dangerous weapon, the defendant argues that the prosecutor did not state facts sufficient to allege that he had used a beverage coaster as a dangerous weapon. The prosecutor described an incident during which the defendant, in arguing with his former girl friend, had strangled and assaulted and battered her. "He also ... threw a coaster and a yoga mat at her. The Commonwealth alleges those are the dangerous weapons in this allowed the motion as to that conviction. case, the coaster striking her in the left eye, the yoga mat brushing her shoulder area."

The question here was "whether the object, as used by the defendant, [was] capable of producing serious bodily harm." Commonwealth v. Mattei, 455 Mass. 840, 844 (2010), quoting from Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001). The defendant argues that, because the prosecutor did not further describe the coaster, it could have been made of a flimsy material such as paper, incapable of producing such harm. We disagree. An object the size of a coaster that is heavy enough to be "thrown" at the victim, "striking her" in the eye-one of the most sensitive parts of the human body-is plainly capable of producing serious bodily harm. The prosecutor's statement on this point was sufficient to ensure that the defendant's plea was made intelligently.

As to the charge of intimidating a witness, the defendant claims that the prosecutor did not state facts sufficient to allege that he had "intimidate [d] or harasse[d]" the victim. The witness intimidation statute, G. L. c. 268, § 13B, as amended by St. 2010, c. 256, § 120, provides, insofar as relevant here: "Whoever, directly or indirectly, wilfully ... intimidates or harasses another person who is ... a person who is furthering a civil or criminal proceeding ... shall be punished ...."

Here, the prosecutor stated that the day after the defendant's various assaults on his former girl friend, she obtained a restraining order against him. The prosecutor further stated that, one-half hour after being served in hand with a copy of that order, the defendant sent the victim an electronic mail message (e-mail),

"which would have been a violation of the no contact order .... [This e-mail] is what constitutes[,] the Commonwealth believes[,] the witness intimidation indictment, in which the defendant references the restraining order and says another active restraining order would hurt him immensely and that he does not need any more legal problems, and further states, 'I'm a ship that desires to float and not sink. Please allow me the opportunity without further setbacks.' "

Although the motion judge concluded that this statement was sufficient to establish harassment, we believe that the case is more easily resolved on the basis that the statement established intimidation.

Intimidating conduct includes "acts or words that would instill fear in a reasonable person, [done] with the intent to impede or influence a potential witness's testimony." Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 535 (2010). It is not "necessary to establish that the intimidation was successful in the sense that the target of the intimidating conduct was actually frightened and made reluctant to testify." Ibid.

" '[W]ords do not need to be expressly intimidating, threatening, or harassing' in order to fall within the meaning of intimidation.... 'The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered[;] ... the [fact finder] may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances.' "

Commonwealth v. Carvalho, 88 Mass. App. Ct. 840, 845-846 (2016), quoting from Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613 (2007).

Here, the defendant was alleged to have sent the victim an e-mail in violation of a restraining order served only one-half hour earlier-and within one day after the defendant had violently attacked her-that implicitly but unmistakably urged her not to pursue the restraining order proceeding any further. This e-mail, showing the defendant's willingness to violate the terms of a restraining order aimed at preventing further violent attacks, would have instilled fear in a reasonable person in the victim's position. The prosecutor's statement on this point was therefore sufficient to ensure that the defendant's pleas were made intelligently.

Order denying motion for new trial on counts 3 and 5 affirmed.

      See note 3, infra.

      These acts led to other charges, including two counts of strangulation or suffocation, and three counts of assault and battery, to which the defendant also pleaded guilty, and which are not at issue in this appeal.

      The defendant's motion also sought to withdraw his plea of guilty to a second charge of assault and battery by means of a dangerous weapon, to wit, a yoga mat (count 4). The judge

      Although the indictment charged that the coaster was made of wood, this allegation was not mentioned in the colloquy, and therefore we do not consider it.

      Had the prosecutor stated that the defendant "tossed a coaster at the victim, brushing her in the eye area," a different question would be presented.

      The statute defines "harass" as meaning "to engage in any act directed at a specific person or persons, which act seriously alarms or annoys such person or persons and would cause a reasonable person to suffer substantial emotional distress." G. L. c. 268, § 13B(3).


text:
    COMMONWEALTH v. Wayne E. SOUZA.
    17-P-274
    Appeals Court of Massachusetts.
    Entered: January 10, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   A jury convicted the defendant, Wayne E. Souza, of violating an abuse prevention order, G. L. c. 209A, § 7. The defendant appeals from the judge's denial of his motion for a required finding of not guilty, asserting that the Commonwealth failed to satisfy its burden of establishing that he had notice of the extended restraining order. We affirm.

When reviewing the denial of a motion for a required finding of not guilty, we consider the evidence, together with all permissible inferences, in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Perez, 460 Mass. 683, 702 (2011), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To sustain a conviction for a G. L. c. 209A violation, the jury had to find that: (1) a valid G. L. c. 209A order was in effect on the date of the violation; (2) the defendant knew of the order; and (3) the defendant's conduct was in violation of one of the order's prohibitions. Commonwealth v. Silva, 431 Mass. 401, 403 (2000). Here, the defendant asserts there was insufficient evidence to support a reasonable inference that he knew of the extended order's existence. We disagree.

Proof of knowledge is "frequently made" through "proof by inference from all the facts and circumstances developed at the trial ... [and t]he inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Kilburn, 426 Mass. 31, 34 (1997), quoting from Commonwealth v. Stewart, 411 Mass. 345, 350 (1991). Evidence that a defendant had received a copy of the preliminary ex parte restraining order, as is the case here, "warrants the conclusion that the defendant had actual knowledge of the terms of the [later] extended order." Commonwealth v. Delaney, 425 Mass. 587, 593 (1997). See Commonwealth v. Henderson, 434 Mass. 155, 161, 163-164 (2001) (service of ex parte order on incarcerated defendant who did not attend extension hearing and received the extended order months after he violated it satisfied knowledge element). Accordingly, because the Commonwealth's evidence established that the defendant received in hand a copy of the preliminary ex parte order, that he was told by the police officer delivering it that there would be an extension hearing, after which the order could be extended even in his absence, and where the preliminary ex parte order provided the date of the extension hearing and the terms of the order, there was sufficient evidence that the defendant had notice of the extended order and knew of its terms. Id. at 164. We discern no error.

Judgment affirmed.

      The defendant was also charged with stalking in violation of a restraining order, G. L. c. 265, § 43(b ) ; that charge was dismissed at the request of the Commonwealth.


text:
    Hamik SEBKARSHAD  v. FACEBOOK, INC.
    17-P-86
    Appeals Court of Massachusetts.
    Entered: January 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      We note that since the filing of his action in Superior Court, the plaintiff at times has used a different surname (Sayadian); we use the surname as it appears in the Superior Court docket and on the plaintiff's appellate brief.

   The plaintiff appeals from a Superior Court judgment dismissing his complaint as claim precluded based on a prior judgment of a Federal court in Maryland dismissing his complaint against the same defendant. We affirm the judgment based on the rationale set forth in the motion judge's thorough and well-reasoned memorandum of decision. Contrary to the plaintiff's contention on appeal, the complaint was dismissed based on claim preclusion, not issue preclusion, and the judge correctly ruled that claim preclusion, in contrast to issue preclusion, does not depend on a particular issue having been "actually litigated" in the prior case.

The plaintiff's brief suggests in passing that the complaint-screening statute for an action proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2)(B) (2012), under which his Federal complaint was dismissed, unconstitutionally discriminates on the basis of a litigant's economic status. There is no indication that he made such an argument in the Superior Court, and therefore the argument is waived. See Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493-494 (1983). Nor does the plaintiff's one-sentence mention of the issue in his appellate brief meet the requirements for a developed argument set forth in Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 540 (2014). He is not entitled to relief on this ground.

Judgment affirmed.


text:
    Thomas S. OLIVER, Jr. v. Alyssa PARENT.
    17-P-315
    Appeals Court of Massachusetts.
    Entered: January 19, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Individually and doing business as BR Enterprises.

      Individually and doing business as Sun Days Tanning Etc.

   The plaintiff, Thomas S. Oliver, Jr., filed a complaint in the District Court on December 23, 2005, against the defendant, Alyssa Parent, seeking payment for goods sold and delivered and asserting a claim of unfair and deceptive trade practices under G. L. c. 93A. The trial court docket indicates that on July 27, 2007, the case was "inactivated" at the request of the parties "while payment is being made."

Seven years later, on August 1, 2014, the plaintiff filed an application for default judgment. Judgment for the plaintiff in the amount of $11,271.53 entered on August 27, 2014. On September 9, 2014, the defendant moved to vacate the default judgment, and on September 15, 2014, it was vacated as "issued in error." On October 3, 2014, the defendant filed an answer and counterclaim, along with a motion for leave to file late, which a judge allowed on October 29, 2014.

The case was scheduled for a bench trial on September 14, 2015. On September 17, 2015, the judge issued a judgment of dismissal of the plaintiff's complaint, "after plaintiff(s) failed to appear." On November 3, 2015, a default judgment entered against the plaintiff on the defendant's counterclaims in the amount of $32,913.30. The docket indicates that a copy of the judgment on the counterclaims mailed to the plaintiff was returned on November 12, 2015. The plaintiff filed a notice of appeal on January 4, 2016. The defendant moved to dismiss the plaintiff's notice of appeal as untimely, and the motion was allowed on March 23, 2016. On August 30, 2016, the plaintiff filed a motion for leave to file a late notice of appeal. A hearing on the motion was held on September 7, 2016, and the judge denied the motion on September 28, 2016.

The plaintiff then filed in the Appellate Division of the District Court a "Motion to Vacate Judgment and Reinstate Original Judgment under Rule 2." In a decision and order dated January 11, 2017, and entered on January 13, 2017, the Appellate Division denied the plaintiff's motion, stating that it lacked the authority "to allow the filing of an appeal more than 180 days after the judgment that entered on November 3, 2015," and that "the plaintiff ha[d] failed to demonstrate good cause for an enlargement of time under Rule 14(b) for the filing of the notice of appeal, nunc pro tunc, to January 4, 2016." The plaintiff filed a timely notice of appeal from the Appellate Division's decision on his motion, which is the only matter now before us.

Discussion. A notice of appeal in a civil case must be "filed with the clerk of the lower court within thirty days of the date of the entry of the judgment appealed from." Mass.R.A.P. 4(a), as amended, 464 Mass. 1601 (2013). A notice of appeal to the Appellate Division of the District Court must be filed within ten days of the judgment appealed from. See District/Municipal Courts Rules for Appellate Division Appeal (Dist./Mun.Cts.R.A.D.A.) 4(a). In either case, the plaintiff's notice of appeal from the November 3, 2015, judgment, which he filed on January 4, 2016, was untimely.

Rule 2 of the Dist./Mun.Cts.R.A.D.A. permits the Appellate Division to suspend any provision or requirement of its rules except as provided in rule 4(c) and rule 14(b). Rule 4(c) permits the trial court to extend the time for filing a notice of appeal by ten days based on a motion for an extension, but "in no event shall the court permit the filing of a notice of appeal later than 180 days after entry of the judgment." Dist./Mun.Cts.R.A.D.A. 4(c). Rule 14(b), which permits the enlargement of time for doing any act required under the rules, also prohibits the enlargement of time for filing a notice of appeal beyond 180 days from the date of entry of the judgment.

The plaintiff's January 4, 2016, notice of appeal had been stricken as untimely when the plaintiff initiated his action in the Appellate Division on October 17, 2016. By this time well over 180 days had elapsed since the entry of judgment on November 3, 2015. The Appellate Division did not err in concluding that "[t]his Division lacks authority under Rule 2 to allow the filing of an appeal more than 180 days after the judgment that entered on November 3, 2015."

Thus, the only avenue of relief open to the plaintiff was a request for the Appellate Division to enlarge his time for filing his January 4, 2016, notice of appeal nunc pro tunc, rendering it timely. See Commonwealth v. White, 429 Mass. 258, 263-264 (1999) ; Eyster v. Pechenik, 71 Mass. App. Ct. 773, 781 (2008). In this regard, the Appellate Division concluded that the plaintiff had "failed to demonstrate good cause" to justify an enlargement of time. See id. at 781-782 (party seeking to file notice of appeal late must establish " 'good cause' for [his] failure to file a timely appeal in light of all the circumstances," as well as "meritorious appellate issues"). We review the Appellate Division's decision on the issue of "good cause" for abuse of discretion. See Johnny's Oil Co. v. Eldayha, 82 Mass. App. Ct. 705, 708 (2012). Having reviewed the plaintiff's filings in the Appellate Division, we discern no abuse of discretion in the Appellate Division's determination that the plaintiff failed to establish good cause.

Accordingly, we affirm the decision and order of the Appellate Division.

So ordered.

Affirmed.

      The motion is dated October 10, 2016, but was filed in the Appellate Division on October 17, 2016.

      This is true even using October 10, 2016, as the filing date. See note 3, supra.


text:
    CAPE COD & ISLANDS COUNCIL, INC., Boy Scouts of America, Inc. v. CAMP RICHARD CAMPERS ASSOCIATION, INC., & others.
    17-P-514
    Appeals Court of Massachusetts.
    Entered: January 19, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Tripp Cobb, Robert S. Graves, Ralph Hardy, Bertyl V. Johnson, Jr., Charles Lenhart, David Murray, Jr., Homer F. Ray, III, and George Rezendes. The Nantucket Civil League, Inc., appeared as an intervener.

   The defendants appeal from a judgment of the Superior Court, entered after hearing on the parties' cross motions for summary judgment, declaring that the plaintiff Cape Cod & Islands Council, Inc., Boy Scouts of America, Inc. (council), holds title, as trustee, to a certain 100-acre camp on Nantucket known as Camp Richard (camp), subject to the conditions of an implied charitable trust.

On appeal, the parties do not dispute the judge's determination that the 1955, 1971, and 1972 deeds evidenced a clear intent to convey the camp subject to a charitable trust encompassing the duty to reconvey the property to the defendant Nantucket Civic League, Inc. (NCL), if the land is no longer used "as a campsite for the scouts on Nantucket." See Harrison v. Marcus, 396 Mass. 424, 432 (1985) ; Cohen v. Lynn, 33 Mass. App. Ct. 271, 275 (1992). However, the defendants claim error in the judge's decision to appoint the council as trustee instead of the Nantucket District Committee (NDC) (or the Camp Richard Campers Association, Inc. [CRCA], as successor trustee), which the judge acknowledged was the clear intent of the NCL as grantor in the relevant deeds.

The judge found that, at the time of the relevant conveyances, the defendant NDC was an unincorporated association with unascertainable membership such that it was incapable of holding title to the camp, and concluded that the council, as the incorporated parent organization affiliated with the Boy Scouts of America, was the most suitable trustee. See Pritchard v. Attorney Gen., 77 Mass. App. Ct. 494, 497 n.5 (2010), quoting from Prudential Ins. Co. v. New York Guild for the Jewish Blind, 252 A.D. 493, 495 (1937) ("[A]s courts of other States have held, '[w]here a gift is made for charitable purposes to an organization which, though it is unincorporated, is a branch or subsidiary of a corporation, the courts have held the gift effective by awarding it to the corporation to be held by it in trust for the purposes of the gift' "). In so doing, however, the judge resolved a question that had not been raised by any party, and without affording the parties an opportunity to present evidence bearing on the question of the appropriate trustee. That was error.

While it is well settled that an unincorporated association generally is not qualified to take real estate as a grantee, Byam v. Bickford, 140 Mass. 31, 32 (1885), when the members of such an association are ascertainable at the time of the conveyance they are "tenants in common of the land conveyed" in whom title may vest. Ibid. Separate from the question of association membership at the time of the conveyance is the question of any changes in membership subsequent to the deed. Id. at 33. The record is devoid of evidence addressing those questions, however, principally because the question of who or what might be the most appropriate trustee of the implied trust advocated by the defendants was never raised by any party and was instead developed by the judge following presentation of the parties' cross motions for summary judgment. While the theory reflects both sophistication and legal soundness, its development independent of the parties' participation deprived the defendants of the opportunity to present evidence that the NDC membership at the time of the conveyances was ascertainable, that the NDC had a method of succession for trustees, or that the conditions of the trust regarding succession of trustees should be implied to effectuate the intent of the grantor in conveying the camp. Similarly, the defendants were unable to present arguments concerning the CRCA's suitability as a successor trustee to the NDC. Moreover, even though the judge's ultimate determination favored the council, the decision likewise deprived it of any opportunity to meet that evidence or to present evidence (or argument) of its own directed to the question of the most suitable trustee.

Paragraphs 2, 3, and 4 of the corrected judgment are vacated, and the case is remanded for further proceedings consistent with this decision. Paragraph 1 of the corrected judgment is affirmed.

So ordered.

Affirmed in part; vacated in part and remanded.

      We adopt the referential nomenclature employed by the motion judge in his thorough and thoughtful memorandum of decision.

      The judge rejected the CRCA as a successor trustee for the sole reason that it had no affiliation with the national Boy Scouts organization. However, the matter of the CRCA's affiliation, or lack thereof, with the Boy Scouts has no dispositive bearing on its ability to be appointed trustee. See Harrison v. Marcus, 396 Mass. at 425 n.4 (land validly held in trust for use by Boy Scouts by three private individuals unaffiliated with Boy Scouts).


text:
    COMMONWEALTH v. Karel Diaz DAROSA.
    16-P-1509
    Appeals Court of Massachusetts.
    Entered: January 19, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from an order revoking his probation based on the alleged commission of various new firearm offenses. He asserts there was insufficient evidence to find him in violation of his probation because the Commonwealth did not prove that he possessed a firearm, or that the firearm in question met the statutory definition of a firearm under G. L. c. 140, § 121. He also challenges the sufficiency of the evidence that the firearm was loaded with "ammunition," as defined under G. L. c. 140, § 121. We affirm.

Procedural history. In 2015, the defendant pleaded guilty to assault and battery by means of a dangerous weapon. He was sentenced to two and one-half years in a house of correction, eighteen months to serve with the balance suspended for two years with various conditions of probation. Thereafter, he was charged with various new firearm offenses and was served with a notice of probation and violation hearing. Three police officers testified at the final surrender hearing, each of whom had personal knowledge of the events upon which the new charges were based. The defendant was found in violation of his probation and sentenced to serve the balance of his suspended sentence.

Facts. About 6:00 in the evening on February 24, 2016, four Boston police officers were on patrol when they stopped a Jeep Cherokee for traffic violations. There were four individuals, including the defendant, in the Jeep. The defendant was a passenger and was seated in the back seat. The police soon learned that neither the driver nor the other passengers had a driver's license and, as a result, they made arrangements to tow the Jeep. Before the tow truck arrived, the officers conducted an inventory search during which one of the officers removed a backpack from the floor or rear seat area where the defendant had been sitting. The officer felt a hard, heavy object when he picked up the backpack. He opened the bag and saw a black gun which turned out to be a loaded, nine-millimeter Luger with an obliterated serial number. The backpack also contained school papers, identification, release paperwork from the Suffolk County house of correction, and a certificate of vital record, all bearing the defendant's name. Upon discovering the firearm, the defendant (and the other occupants) was handcuffed and advised of his Miranda rights. In response to the officers' question whether he needed to retrieve any items from the Jeep, the defendant stated that he needed his backpack.

Discussion. An order revoking probation is reviewed for an abuse of discretion. Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014). The defendant contends that the judge abused his discretion here because there was insufficient evidence that he constructively possessed the firearm and ammunition which formed the basis for the new charges. Thus, the defendant asserts, the Commonwealth failed to prove that he had violated his probation by committing a new crime. We disagree.

"To establish constructive possession, the Commonwealth must prove a defendant's (a) knowledge of the contraband; (b) ability to control it; and (c) intention to exercise control over it." Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 444 (2013). Here, the backpack was found in an area over which the defendant had control and contained personal papers belonging to him. In addition, the defendant effectively exercised ownership of the backpack when he told the police that he needed to get it from the Jeep before it was towed. This evidence was more than sufficient for the judge to find by a preponderance of the evidence that the defendant had constructive possession of the firearm, thereby warranting a finding that the defendant had violated his probation. See Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001) ("The standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence rather than the criminal standard of beyond a reasonable doubt").

Next, the defendant claims that the evidence was insufficient to establish that the firearm and ammunition met the statutory definitions set forth in G. L. c. 140, § 121. Although we agree with the defendant that the Commonwealth's proof on these issues would not satisfy the standard of proof beyond a reasonable doubt, the evidence was sufficient to satisfy the preponderance of the evidence standard. See Commonwealth v. Hill, supra. Accordingly, we affirm the order revoking probation and imposing the balance of the defendant's suspended sentence.

So ordered.

Affirmed.

      Specifically, the defendant was charged with possessing a firearm without a firearm identification card (FID) (second offense), G. L. c. 269, § 10(h )(1) ; unlawfully possessing a firearm having three prior violations or drug crimes, G. L. c. 269, § 10G(c ) ; possessing a firearm with a defaced serial number, G. L. c. 269, § 11C ; carrying a firearm without an FID, G. L. c. 269, § 10(a ) ; possessing ammunition without an FID, G. L. c. 269, § 10(h )(1) ; and carrying a loaded firearm without a license, G. L. c. 269, § 10(n ).

      Although the judge made no findings of fact, the evidence at the hearing was not contradicted and, more importantly, was sufficient to support the judge's conclusion.

      In pertinent part, that statute defines "firearm" as "a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured." G. L. c. 140, § 121, as appearing in St. 1998, c. 180, § 8. "Ammunition" is defined as "cartridges or cartridge cases, primers (igniter), bullets or propellant powder designed for use in any firearm, rifle or shotgun. The term 'ammunition' shall also mean tear gas cartridges." Ibid. See G. L. c. 269, § 10(o ) (defining ammunition).


text:
    BODHISATTVA SKANDHA v. Joan T. KENNEDY.
    16-P-1536
    Appeals Court of Massachusetts.
    Entered: January 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, Bodhisattva Skandha, appeals from an order denying him leave to file a complaint in the Superior Court and from the subsequent order denying his motion for reconsideration. We affirm.

The plaintiff filed a complaint in the Superior Court for Suffolk County naming Joan T. Kennedy, a Department of Correction attorney, as the sole defendant. The complaint alleges that Kennedy had filed motions to waive compliance with Superior Court Rule 9A in two cases. The complaint also alleges that Kennedy once represented in a court proceeding that a particular motion "was not served on the Plaintiff prior to filing as is generally required." The plaintiff sought declarations that "all parties are required to abide by the mandatory language in Superior Court Rule 9A(a)(1)" and that " Superior Court Rule 9A(e)(2) only allows an exemption from the packaging of motions."

The plaintiff is subject to an order in the Superior Court for Suffolk County requiring prior judicial review of any complaint before acceptance for filing. See Skandha v. Clerk of the Superior Ct. for Civil Bus. in Suffolk County, 472 Mass. 1017, 1019 (2015). The regional administrative justice conducted this review and denied the plaintiff leave to file his complaint, stating that "[t]here is no jurisdiction over a separate lawsuit regarding service in another case as the dispute must be resolved in the underlying case."

The judge did not abuse his discretion or commit legal error in screening out the plaintiff's complaint. The complaint is frivolous. It gives no indication that "an actual controversy" exists within the meaning of G. L. c. 231A, § 1, inserted by St. 1945, c. 582, § 1. See Department of Community Affairs v. Massachusetts State College Bldg. Authy., 378 Mass. 418, 422 (1979). Indeed, the plaintiff stated in his motion for reconsideration that "the so-called underlying case is no more." Moreover, although the plaintiff's motion for reconsideration states that he seeks a declaratory judgment "that each and every defendant involved in civil litigation" is subject to rule 9A, only a single attorney is named as a defendant. See G. L. c. 231A, § 8, inserted by St. 1945, c. 582, § 1 ("When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration"); Service Employees Intl. Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 338 (2014) ("The failure to name necessary parties may be jurisdictional in a declaratory judgment action").

Finally, as the regional administrative justice observed, whether service is properly made in any particular matter can only be determined in the context of that matter. Although service of all pleadings under rule 9A is generally required, situations may exist that would justify delayed or partial service in some cases. Declaratory relief is not available as "a vehicle for resolving abstract, hypothetical, or otherwise moot questions." Libertarian Assn. of Mass. v. Secretary of the Commonwealth, 462 Mass. 538, 547 (2012).

Order denying leave to file complaint affirmed.

Order denying reconsideration affirmed.


text:
    Beth SHEA v. Benjamin O. DELANEY, III, & another.
    17-P-179
    Appeals Court of Massachusetts.
    Entered: January 19, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Kara J. Delaney.

   Following a jury-waived trial in District Court, the judge ordered the entry of judgment in favor of the defendants (tenants) on their counterclaim pursuant to G. L. c. 186, § 14, finding that the plaintiff (landlord) breached the tenants' right of quiet enjoyment of their rental property in June, 2012, when she (along with three movers) entered the property to remove certain of her personal items. The Appellate Division of the District Court Department affirmed. This appeal followed. We affirm.

Sufficiency of the evidence. On appeal, the landlord argues that there was insufficient evidence to support the judge's finding that she breached the tenants' right to quiet enjoyment because she testified that the tenants had given her blanket permission to enter the property at any time. We accept a trial judge's findings of fact unless clearly erroneous, and uphold the legal conclusions based on these findings as long as they "are based on reasonable inferences from the evidence." Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997).

At trial, the landlord admitted that, on the date in question, she entered the rental property without giving any specific notice to the tenants that she intended to do so. Her testimony that the tenants had given her blanket permission to enter the property at any time was contradicted by documentary evidence-an electronic mail message, written immediately following the landlord's entry into the rental property, that expressed the tenants' outrage at the landlord's entry into their home, while their minor children were home alone, and their position that they had not given her permission to enter. On this record, there was sufficient evidence to support the judgment in favor of the tenants that the landlord breached the tenants' right to quiet enjoyment by entering the property without their permission.

Attorney's fees and costs. Next, the landlord argues that, in light of her original complaint as a small claims action, seeking less than $5,000 in damages, the trial judge abused her discretion in awarding $15,678.75 in attorney's fees and costs to the tenants in connection with their G. L. c. 186, § 14, counterclaim. , We review the award of legal fees for abuse of discretion. Berman v. Linnane, 434 Mass. 301, 303 (2001). On appeal, the landlord does not challenge any individual item submitted in support of the fee award; instead, she argues that the fees were disproportionate in light of her original $5,000 complaint. The argument lacks merit. See, e.g., Murphy v. Miller, 75 Mass. App. Ct. 210, 213-214, 219 (2009) (affirming award of statutory damages of $1,755 and nearly $16,000 in attorney's fees and costs in connection with tenant's successful G. L. c. 186, § 14, claim). See also Simon v. Solomon, 385 Mass. 91, 111-112 (1982) (affirming award of $40,000 in fees and costs). Here, when the case was transferred to the District Court, the landlord amended her complaint to seek $50,000 in damages. As the trial judge noted, discovery on the amended claims and counterclaims went on for "months and months," with the landlord abandoning her amended claims on the first trial day and opting to proceed only on her original claims. By then, the tenants had spent substantial legal fees. In these circumstances, the judge's award of fees was not an abuse of discretion.

The tenants are also entitled to appellate attorney's fees for successfully defending the victory on their breach of quiet enjoyment claim brought pursuant to G. L. c. 186, § 14. See Yorke Mgmt. v. Castro, 406 Mass. 17, 19 (1989). Within fifteen days of the date of the rescript, the tenants shall submit a statement of their appellate attorney's fees in accordance with the procedure specified in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Within fifteen days thereafter, the landlord may submit an opposition to the amount requested. See Demoulas Super Mkts., Inc. v. Ryan, 70 Mass. App. Ct. 259, 268-269 (2007).

Decision and order of the Appellate Division affirmed.

      "This court's review is on the District Court report just as was the review by the Appellate Division." Anderson v. Old King's Hy. Regional Historic Dist. Commn., 397 Mass. 609, 611 (1986).

      The action was removed, by agreement of the parties, to District Court.

      The landlord also argues that the fee amount was unwarranted because the tenants did not submit actual invoices from their counsel. Given that trial counsel submitted an affidavit along with the itemized fee application, and that the landlord specifically waived an evidentiary hearing, this argument lacks merit.

      In addition to their counterclaim under G. L. c. 186, § 14, the tenants asserted counterclaims for breach of contract and under G. L. c. 93A. The landlord does not argue that the awarded fees were improperly allocated to the G. L. c. 186, § 14, counterclaim; accordingly, any such argument is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) ("An issue not raised or argued below may not be argued for the first time on appeal" [citation omitted] ).

      The tenants filed a motion for judgment on the pleadings on the landlord's tort and equitable relief claims, which was granted.


text:
    Frederick BONAMO v. David BETZ, Jr.
    17-P-220
    Appeals Court of Massachusetts.
    Entered: January 19, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Individually and in his capacity as lieutenant of the Chelsea police department.

   The plaintiff, Frederick Bonamo, appeals from a Superior Court judgment granting the defendant's motion for summary judgment. He contends that the trial judge improperly found the defendant immune from liability. We affirm.

1. Standard of review. "We review a grant of summary judgment de novo." Deutsche Bank Natl. Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). On appeal, the issue is "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 129 (1991).

2. Civil rights. Although the plaintiff appeared to waive any claims pursuant to the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 11I (MCRA), at oral argument, such arguments fail in any event. The MCRA does not provide a cause of action against public officials in their official capacities, Howcroft v. Peabody, 51 Mass. App. Ct. 573, 593 (2001) ; therefore, we address the plaintiff's claims against the defendant only in his individual capacity. See O'Malley v. Sheriff of Worcester County, 415 Mass. 132, 141 (1993) ("Monetary damages against State officials are available only if they are sued in their individual or personal capacities for actions under color of State law").

The doctrine of qualified immunity under 42 U.S.C. § 1983 (2012), applies equally to MCRA claims, Duarte v. Healy, 405 Mass. 43, 46-47 (1989), shielding government officials performing nonministerial, discretionary functions from civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Howcroft, 51 Mass. App. Ct. at 595. "On a motion for summary judgment, the relevant inquiry is 'whether a reasonable official could have believed his actions were lawful in light of clearly established law and the information that the official possessed at the time of his allegedly unlawful conduct.' " Ahmad v. Department of Correction, 446 Mass. 479, 485 (2006), quoting from Clancy v. McCabe, 441 Mass. 311, 317 (2004).

Here, the plaintiff alleges that the defendant failed both (1) to identify the seized Susan B. Anthony coins as potentially high-value items; and (2) to affirmatively investigate whether the coins' actual value exceeded their face value. These were discretionary functions, the alleged value of the seized coins was in no way obvious, and there is no established law or procedure-nor any cited by the plaintiff-that required the defendant to undertake such a process. See Duarte, 405 Mass. at 48, quoting from Davis v. Scherer, 468 U.S. 183, 196 n.14 (1984) ("A law that fails to specify the precise action that the official must take in each instance creates only discretionary authority"). Having no information to the contrary, the defendant could reasonably believe that he had no legal obligation to determine the coins' possible value prior to processing them. As a matter of law then, the judge properly concluded that the defendant was entitled to qualified immunity under the MCRA.

Judgment affirmed.

      The plaintiff asserted negligence and conversion claims under common law and the Massachusetts Torts Claims Act against the defendant at oral argument, yet they were not argued in his brief. These claims are deemed waived and we need not address them. Mass.R.A.P. 16(a)(4), as amended, 921 (1975). See Malden Police Patrolman's Assn. v. Malden, 92 Mass. App. Ct. 53, 62 n.11 (2017).


text:
    COMMONWEALTH v. John P. MURPHY.
    17-P-800
    Appeals Court of Massachusetts.
    Entered: January 18, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant appeals from his convictions of operating a motor vehicle while under the influence of intoxicating liquor, second offense, and negligent operation of a motor vehicle. He contends that the judge erred in refusing his request to instruct the jury on the defenses of necessity and accident. See Commonwealth v. Magadini, 474 Mass. 593, 597 (2016) (necessity defense); Commonwealth v. Power-Koch, 69 Mass. App. Ct. 735, 737 (2007) (accident defense). An instruction on either defense would have been required had the evidence, viewed in the light most favorable to the defense and with all reasonable inferences drawn in its favor, supported that defense. See Magadini, 474 Mass. at 600 ; Power-Koch, 69 Mass. App. Ct. at 737. We conclude that the evidence here, so viewed, did not support either defense, and we therefore affirm.

The defendant argues that the defenses were supported by evidence that the defendant's pick-up truck had a mechanical problem that caused it to jump out of "park" and into gear. We assume arguendo, although there was no direct evidence on the point, that the jury could permissibly have found that the truck did jump into gear at about the time in question. The defendant's wife had parked the truck in a store parking lot to do an errand, leaving its keys on the driver's seat with the defendant, who was sitting in the passenger seat, so he could listen to the radio if he wished. A witness then heard tires squealing and saw the truck quickly travel in reverse through the parking lot, cross through traffic on a street, and crash into a bank on the other side of the street. The defendant was in the truck. When the defendant's wife returned from her errand, she saw that the truck was not where she had left it, but instead was across the street.

The defendant argues that the truck's having slipped into reverse gear constituted an "accident," that "necessity" justified his putting his foot on the brake pedal in an attempt to stop the truck from causing injury or property damage, and that a further "accident" resulted in him putting his foot on the accelerator, rather than the brake pedal, causing the tires to squeal and the truck to travel in reverse across the road and hit the bank.

What this scenario ignores is that under any permissible view of the evidence, the truck's tires could not have squealed and it could not have traveled across the road unless its engine had been started, and, even taking the view most favorable to the defendant, he was the only one who could have started it. His having done so constituted "operation." See Commonwealth v. Uski, 263 Mass. 22, 24 (1928) ("A person operates a motor vehicle within the meaning of G. L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle"); Commonwealth v. Eckert, 431 Mass. 591, 599 (2000) (operation "is not limited to driving a vehicle or setting it in motion, but encompasses also the intentional act of starting the vehicle's engine"); Commonwealth v. McGillivary, 78 Mass. App. Ct. 644, 645-647 (2011).

Once the defendant started the engine, that element of the offense was complete. "It has long been recognized that 'a vehicle may be operated when standing still.' " Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. 566, 568 (1926). The defendant does not argue that "necessity" justified his starting the engine in order to avoid some greater harm. Cf. Magadini, 474 Mass. at 597, quoting from Commonwealth v. Kendall, 451 Mass. 10, 13 (2008) (necessity defense "exonerates one who commits a crime under the 'pressure of circumstances' if the harm that would have resulted from compliance with the law ... exceeds the harm actually resulting from the defendant's violation of the law"). Nor does he argue that his having started the engine was itself an "accident," i.e., "an unintentional event occurring through inadvertence, mistake, or negligence." Power-Koch, 69 Mass. App. Ct. at 737, quoting from Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 650 (2002). Accordingly, the defendant was not entitled to jury instructions on necessity or accident.

Judgments affirmed.

      The defendant commendably brings to our attention, by way of a motion to deem his notice of appeal timely filed, what he perceives may be a possible defect in our appellate jurisdiction. The defendant filed a motion for a required finding of not guilty or, alternatively, a new trial under Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001), within thirty days after the jury's guilty verdicts. He filed his notice of appeal within thirty days of the denial of the motion for a new trial. The notice of appeal was thus timely under Mass.R.A.P. 4(b), as amended, 431 Mass. 1601 (2000), and accordingly we need take no action on the defendant's motion before us.

      We omit, as immaterial to the issue on appeal, the evidence relating to the defendant's intoxication and the other elements of the offenses with which he was charged.

      There was no evidence suggesting that the defendant's wife had parked the truck on an incline, from which it could spontaneously start rolling. For that matter, there was no evidence suggesting that the truck had a tendency to jump into reverse even when the engine was not running.

      He does assert it to be "common knowledge that to unlock the steering wheel and activate the brakes, the key must be inserted into the ignition and turned." Even assuming this to be true, the defendant fails to explain how it would have been necessary to use the steering wheel or brakes unless the engine had first been started.

      He does not argue that he put the key in the ignition in order to listen to the radio but accidentally turned the key too far and thereby started the engine.


text:
    COMMONWEALTH v. Francisco BARRIOS.
    16-P-1490
    Appeals Court of Massachusetts.
    Entered: January 18, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant was convicted of forcible rape of a child under sixteen years of age in violation of G. L. c. 265, § 22A, and aggravated rape of a child under sixteen, in violation of G. L. c. 265, § 23A(b ). On appeal, he claims that the victim's testimony was not reliable and should have been excluded. He also argues that the judge erred in denying his motions for required findings of not guilty filed at the close of the Commonwealth's case and postverdict. We affirm.

Background. The following evidence was adduced by the Commonwealth. In 2013, the victim, who was twelve years old, lived in an apartment with her mother, her stepfather, a younger half-brother, and the defendant. The defendant was fifty-five years old at the time and had a close relationship with the victim's family. One night during the fall of 2013, the defendant entered the victim's bedroom while she was sleeping. He pushed her shorts and underwear to the side and licked her vagina. The victim awoke and saw the defendant standing over her. She was shocked when she realized what the defendant was doing and she pushed him away. The victim told her mother about the incident the following morning. The mother promptly reported the incident and the defendant did not return to the apartment.

The defendant denied the allegations. At trial, he testified that he never went into the victim's bedroom on the night in question. He claimed that the victim's mother was out that evening and that he was watching the victim and her brother. At around 11:00 P.M. and again at around midnight, the defendant checked on the children, who were both in their mother's bedroom, and then went back to bed. When the mother returned home around 2:00 A.M. , the defendant confronted her about having been out late and then returned to his bedroom until he awoke for work at 5:45 A.M.

Discussion. 1. The victim's testimony. There is no merit to the defendant's claim that the victim's testimony, to which there was no objection, lacked an adequate foundation. As the Commonwealth notes in its brief, "[t]he only foundation required for the testimony of lay witnesses is the ability to perceive, recall, and recount information within the witness's personal knowledge." Commonwealth v. Cintron, 435 Mass. 509, 521 (2001), overruled in part on other grounds, Commonwealth v. Hart, 455 Mass. 230, 239-242 (2009). Here, the victim testified to her own observations. It matters not, as the defendant claims, that the victim testified that she was sleeping when the defendant entered her bedroom. The extent to which the victim could perceive what had happened and then recount the events was a question for the jury to resolve. In these circumstances we discern no error, let alone a substantial risk of a miscarriage of justice.

2. Sufficiency. In reviewing the judge's decision to deny the defendant's motions for required findings of not guilty, we view the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found that all the elements of the crime charged have been satisfied beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "Where, as here, a defendant moves for required findings at the close of the Commonwealth's case and at the close of all the evidence, '[w]e consider the state of the evidence at the close of the Commonwealth's case to determine whether the defendant's motion should have been granted at that time.' " Commonwealth v. Morgan, 449 Mass. 343, 349 (2007), quoting from Commonwealth v. Sheline, 391 Mass. 279, 283 (1984). "We also consider the state of the evidence at the close of all the evidence, to determine whether the Commonwealth's position as to proof deteriorated after it closed its case." Sheline, supra.

The judge did not err in denying the defendant's motions for required findings of not guilty. To begin with, the motion filed at the close of the Commonwealth's case was properly denied because the victim's testimony, if believed, was sufficient to support the convictions beyond a reasonable doubt. See Commonwealth v. Donlan, 436 Mass. 329, 336 (2002). The defendant's claim that the victim's testimony was inherently unreliable raised an issue of credibility that was "solely within the province of the jury" and does not affect the sufficiency of the evidence. Commonwealth v. James, 424 Mass. 770, 785 (1997). The motion filed postverdict likewise was properly denied because the Commonwealth's case did not deteriorate at the close of all the evidence. The defendant's evidence consisted solely of his testimony denying the allegations. As such, he simply "created a conflict in the evidence which was for the jury to sort out and was not material to the required finding issue." Commonwealth v. Valentin, 420 Mass. 263, 267 n.4 (1995).

Judgments affirmed.

      At the time of the incident, the stepfather had moved out of the apartment.

      The victim testified that she was "like, waking up when [she] felt it," and that she was "still kind of in, like, sleeping mode until [she] finally saw what was going on."


text:
    COMMONWEALTH v. Julio C. RAMON VALERIO.
    16-P-1635
    Appeals Court of Massachusetts.
    Entered: January 18, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was convicted after a jury-waived trial of negligent operation of a motor vehicle and three counts of wanton destruction of property. He argues on appeal that the evidence was insufficient to support these convictions. We affirm.

Because the defendant failed to move for required findings of not guilty at the close of the Commonwealth's case, "we consider whether the evidence during the entire trial, including the evidence presented during the defendant's case, was sufficient to sustain the conviction[s]." Commonwealth v. Dustin, 476 Mass. 1003, 1003 (2016). In assessing sufficiency, we examine the evidence, and the reasonable inferences therefrom, 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).

1. Negligent operation. To convict a defendant of 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). The defendant challenges only the third element, arguing that the Commonwealth failed to prove that he operated a motor vehicle in a negligent manner. We disagree.

"The statute only requires proof that the defendant's conduct might have endangered the safety of the public, not that it in fact did." Commonwealth v. Jewett, 471 Mass. 624, 630 (2015), quoting from Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35 (2007). Here, the defendant was driving his vehicle in a residential area at night when he crossed a marked lane and went through three front yards, damaging fences, mailboxes, and a flower bed. A responding police officer observed that the defendant was unsteady on his feet and had bloodshot and glassy eyes. The officer also noticed a strong odor of alcohol emanating from the defendant and an empty "nip" of whiskey inside the car. Although the defendant first said he had consumed two drinks, later, after receiving Miranda warnings, he admitted to drinking "about five nips." He also admitted that he did not have a driver's license and that he "was on the phone, and that the next thing he knew he was in [a resident's] front lawn." This evidence was sufficient for a rational trier of fact to find that the defendant negligently operated his vehicle. See Commonwealth v. Gordon, 15 Mass. App. Ct. 901, 901-902 (1982) (affirming based on evidence that defendant was inattentive while driving and possibly under the influence of drugs); Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256 (2006) (affirming based on evidence that defendant drove while intoxicated, crossed marked lanes, and nearly struck a road sign).

2. Wanton destruction of property. We likewise reject the defendant's argument that the Commonwealth failed to prove that he wantonly destroyed property in violation of G. L. c. 266, § 127. An act is wanton when it is done with "a spirit of indifference or recklessness." Commonwealth v. Ruddock, 25 Mass. App. Ct. 508, 512-513 (1988). "Wanton damage or destruction of property ... is a general intent crime that requires only a showing that the actor's conduct was indifferent to, or in disregard of, the probable consequences." Commonwealth v. Chambers, 90 Mass. App. Ct. 137, 142 n.4 (2016).

Here, a rational trier of fact could have found that the defendant drove his vehicle with indifference to the probable consequence of property damage. The defendant's conduct of driving through a residential area at night, after consuming "about five nips" of alcohol, and while talking "on the phone," created a substantial risk that he would crash into and damage or destroy property. The evidence was thus sufficient to prove that he acted wantonly. See Ruddock, 25 Mass. App. Ct. at 513-514 (defendant acted wantonly by jumping over hood of car because "risk that he might not clear the car" created "likelihood of substantial harm"). Cf. Commonwealth v. McDowell, 62 Mass. App. Ct. 15, 24 (2004) (evidence sufficient to support convictions of defacing personal property, where defendant acted wantonly by driving vehicle in residential area while impaired).

3. Deterioration. Lastly, the defendant contends that the evidence was insufficient because the Commonwealth failed to investigate the broken front strut of his vehicle to determine whether it failed and caused the crash. We construe his argument to be asserting deterioration, which "occurs where 'evidence for the Commonwealth necessary to warrant submission of the case to the jury is later shown to be incredible or conclusively incorrect.' " Ross, 92 Mass. App. Ct. at 381, quoting from Kater v. Commonwealth, 421 Mass. 17, 20 (1995). Where, as in this case, "the Commonwealth has presented sufficient evidence that the defendant committed the crime, the fact that the defendant has presented evidence that he did not does not affect the sufficiency of the evidence unless the contrary evidence is so overwhelming that no rational jury could conclude that the defendant was guilty." Ibid., quoting from Commonwealth v. O'Laughlin, 446 Mass. 188, 204 (2006). Here, the defendant offered an expert who testified that the vehicle's front strut was broken but that she could not determine whether it caused the crash because the Commonwealth failed to take photographs of the bottom of the vehicle. This testimony did not show that the Commonwealth's evidence was "incredible or conclusively incorrect" and therefore did not deteriorate its case-in-chief. Ibid., quoting from Kater, supra.

Judgments affirmed.

      Here, even had such a motion been made, the evidence presented in the Commonwealth's case-in-chief was sufficient to prove the defendant's guilt beyond a reasonable doubt.

      Although the judge found the defendant not guilty of operating a motor vehicle while under the influence of intoxicating liquor, the judge could still consider evidence of the defendant's intoxication in determining negligent operation. See Ross, 92 Mass. App. Ct. at 380.


text:
    ADOPTION OF MAJOR
    (and a companion case).
    16-P-848
    Appeals Court of Massachusetts.
    Entered: January 22, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Adoption of Amy. The children's names are pseudonyms.

   Following a lengthy trial, in December, 2014, a Juvenile Court judge concluded that the parents were unfit to parent Major and Amy (collectively, children), and that termination of parental rights was in the children's best interests. In this consolidated appeal, the parents claim the judge erred in terminating their parental rights, and in denying their motions for relief from judgment. We affirm.

Background. The judge made 184 findings of fact and twenty-nine conclusions of law, which "are both specific and detailed, demonstrating, as we require, that close attention was given to the evidence." Adoption of Don, 435 Mass. 158, 165 (2001). We summarize those findings.

Together, the father and mother are the biological parents of Beth (a pseudonym), born in January, 2003; Major, born in February, 2006; Amy, born in July, 2008; and Susan (a pseudonym), born in January, 2014. Susan has lived with the parents in New Hampshire since birth and is not involved in these proceedings. Prior to trial, the parents stipulated to termination of their parental rights to their oldest child, Beth. The trial was limited to the parents' fitness to parent Major and Amy.

In July, 2011, two reports were filed pursuant to G. L. c. 119, § 51A (51A reports), alleging a wide range of parental abuse and neglect, and physical and verbal abuse of the children. Although the parents denied hitting the children or each other, the judge did not credit their denials. An investigation by the Department of Children and Families (DCF) substantiated the allegations and led to an extensive service plan.

In January, 2012, DCF received another 51A report. A DCF investigation confirmed that the father had broken Beth's nose by punching her in the face. The mother tried to cover the resulting bruise with makeup, and both parents told Beth to lie to her teachers about the injury. When school personnel questioned the mother, she told them Beth had fallen and hurt herself. She did, however, admit that the father had "smacked" Beth in the mouth recently, and that she would "smack or backhand" Major and Amy when she could not control them, although she claimed not to "hit them hard enough to cause a bruise."

The father was charged with assault and battery on a child, and both the mother and father were charged with reckless endangerment of a child. DCF removed the children and placed them in foster care on January 19, 2012. DCF filed a petition to terminate the parents' rights the next day.

There were three important developments between the filing of the petition and the trial. First, despite participating in therapy, both Major and Amy developed more challenging special needs. In his foster home, Major used inappropriate language, threw tantrums, intentionally banged his head against objects, and abused the foster family's dog. He was disruptive and aggressive at school. A school psychologist suspected that Major suffered from ADHD and PTSD. Amy was diagnosed with adjustment disorder and had "problems of conduct," including aggressive behavior.

Second, the parents participated in ongoing services and visitation with the children. With some exceptions, the parents completed their individual service plan tasks. The father participated in anger-management therapy and completed a batterer's intervention program. Both parents participated in parenting classes. The judge noted, however, a therapist's concern that the father was only "saying the right things" during sessions, and that the mother's participation in therapy was sporadic.

Unsupervised visits were terminated due to the parents' failure to comply with DCF safety guidelines. The ensuing supervised visits were problematic. The parents were often unable to control the children's behavior. On several occasions, the parents walked away from difficult situations, leaving DCF personnel to address the children's behavior problems.

Third, there was evidence that Major was sexually assaulting Amy. Amy alleged Major had touched her vagina and "hurt her feelings" while at their parents' home for a December, 2012, weekend visit, and also complained of pain in her genital area after returning from her parents' home after a New Year's Eve, 2012, visit. Amy was evaluated and trauma therapy was recommended for her and Major. Later that year, the foster family found Major on top of Amy, forcefully holding her down while trying to kiss her. Amy "seemed shaken" and the children were placed in separate bedrooms. Amy was observed to have scratches, bruises, and redness around her vagina.

Discussion. 1. Termination of parental rights. "In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona, 459 Mass. 53, 59 (2011). Such a finding must be supported "by clear and convincing evidence, based on subsidiary findings proved by at least a fair preponderance of evidence." Adoption of Jacques, 82 Mass. App. Ct. 601, 606 (2012). "[T]he critical question is whether the natural parents are currently fit to further the welfare and best interests of the child." Bezio v. Patenaude, 381 Mass. 563, 576 (1980). The judge must "analyze the parent's character, temperament, capacity and conduct in relation to the particular child's needs, age, affections and environment." Adoption of Carlos, 413 Mass. 339, 348 (1992). "We give substantial deference to a judge's decision ... and reverse only where the findings of fact are clearly erroneous or where there is a clear error of law or abuse of discretion." Adoption of Ilona, supra. For the reasons that follow, we discern no abuse of discretion in the judge's conclusion that there was clear and convincing evidence of parental unfitness.

Here, there was evidence of a history of domestic violence and child abuse. Such long-standing patterns of physical abuse weigh heavily in considering both the fitness of the parents and the children's best interests. See Custody of Vaughn, 422 Mass. 590, 595 (1996) ; Adoption of Ilona, supra at 62. In addition, the judge's assessment of parental fitness appropriately considered the children's significant special needs. See Adoption of Jacques, supra at 607-608. It is undisputed that both Major and Amy were, at the time of trial, dealing with serious behavioral and emotional problems. The parents consistently demonstrated an inability to address those special needs. During unsupervised visits, the parents left the children without adult supervision for significant periods, in which time Major may have victimized Amy. During supervised visits, the parents were unable to manage the children's behavior, often responding in ways that compounded the problem or put the children at risk.

"Although the record indicates that the [parents] ha[ve] considerable love for [their] children and [the children] for [the parents], it also demonstrates a lack of [understanding or insight] on [the parents'] part." Care & Protection of Three Minors, 392 Mass. 704, 712 (1984). For example, there was evidence that the parents played age-inappropriate video games with the children, causing Major to have nightmares, and that the domestic violence between the parents continued in front of the children.

We are not persuaded by the parents' argument that the evidence of unfitness was stale at the time of trial. The judge was "permitted to assess prognostic evidence derived from prior patterns of parental neglect or misconduct in determining future fitness and the likelihood of harm to the [children]." Adoption of Ilona, 459 Mass. at 60, quoting from Custody of Two Minors, 396 Mass. 610, 621 (1986). The judge acted within his broad discretion in concluding that "[i]n large part, the issues that existed [at the start of DCF involvement in 2005] persist to this day."

While we commend the parents' effort to comply with the majority of DCF's service plan, "[t]he judge was not obliged to believe that the parenting skills of the mother or the father had improved simply because of their recent cooperation with [DCF], or that their good intentions eliminated risk of future abuse" or neglect. Adoption of Lorna, 46 Mass. App. Ct. 134, 143 (1999). Considered in its entirety, the record supports the judge's conclusion that the parents were unfit to care for the children, despite incremental improvement after the petition was filed.

Further, under these circumstances, the judge acted within his discretion when he concluded that "[i]t [was] in the best interests of [Major] and [Amy] to end all legal relations between them and Parents. [The children] need and deserve permanency, safety, and security, which neither parent can provide." While we appreciate the parents' concern and affection for their children, on the record before us we discern no abuse of discretion or clear error of law in the termination of parental rights.

2. Motions for relief from judgment. The parents contend that their progress in the three years after the entry of the decrees demonstrates that any unfitness was temporary, and that their motions for relief from judgment should have been allowed. We review a motion for relief from judgment in Juvenile Court by looking to Mass.R.Civ.P. 60(b), 365 Mass. 828-829 (1974). See Adoption of Rory, 80 Mass. App. Ct. 454, 455 n.3 (2011). A judge may grant such a motion for "newly discovered evidence" or "any other reason justifying relief." Mass.R.Civ.P. 60(b)(2) and (6). We review the denial of a motion for relief from judgment for abuse of discretion. Adoption of Rory, supra at 457.

Posttrial affidavits from the parents indicate they have maintained steady housing and employment, and have successfully parented their youngest daughter. They claim that there is no longer violence in the home. In 2016, a promising preadoptive placement for the children fell through when the children engaged in inappropriate sexual behavior with one another. The children were separated as a result. The parents claim these two changed conditions-sustained improvement in the home, and increased uncertainty in the children's placement-were extraordinary circumstances justifying reconsideration of the termination decrees. The judge was not required to credit these self-serving affidavits regarding improvements in the parents' home in New Hampshire, particularly when there was no new evidence regarding the parents' ability to care for and manage their children's special needs, including the inappropriate sexual behavior that caused their separation. Simply put, we cannot conclude that the judge abused his discretion in concluding that "[t]he rights of the Children would be adversely affected by allowing the Motion."

Decrees affirmed.

Orders denying motions for relief from judgment affirmed.

      The father filed the first motion for relief from judgment in December, 2014, shortly after the judge's original termination order. He and the mother jointly filed two others in December, 2015, and January, 2017.

      The written findings were issued sixteen months after the entry of the decrees. While this delay is unfortunate, there is no indication that it prejudiced the parents, or that it impacted "the accuracy of the judge's memory in making those findings." Adoption of Rhona, 57 Mass. App. Ct. 479, 488 (2003).

      The parents assert that the judge failed to consider (1) the opinion of their parenting expert that the parents were qualified to parent the children, and (2) their success in parenting their youngest child who continued to reside with them. Although it may have been a better practice to make findings regarding that evidence, see Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 260 (1978) ("[t]roublesome facts, pointing to a conclusion contrary to that reached by the ... judge, are to be faced rather than ignored"), the judge was under no obligation to do so where the great weight of the evidence supported the finding of unfitness.

      We address only the parents' third motion for relief from judgment, as it renewed arguments in the first two motions which the parents claimed strengthened over time.

      "Other points, relied on by the [parents] but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. Ronald H. LAPORTE.
    17-P-712
    Appeals Court of Massachusetts.
    Entered: January 18, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury-waived trial, the defendant was convicted of burning a motor vehicle in violation of G. L. c. 266, § 5. On appeal, with a brief submitted pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981), he claims there was insufficient evidence to support his conviction. We affirm.

In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth with specific reference to the substantive elements of the offense. See Jackson v. Virginia, 443 U.S. 307, 324 & n.16 (1979) ; Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). To sustain a conviction of violating G. L. c. 266, § 5, the Commonwealth must prove the following elements: (1) the defendant set fire to or burned the car, or caused it to be burned; (2) the car was personal property of another with a value exceeding twenty-five dollars and/or a motor vehicle; (3) the defendant acted wilfully; and (4) he acted maliciously. See Commonwealth v. Balboni, 89 Mass. App. Ct. 651, 662 (2016).

"[C]ircumstantial evidence is competent to establish guilt beyond a reasonable doubt." Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996). "Of necessity, proof of arson must often rely on circumstantial evidence because arsonists are furtive criminals." Commonwealth v. Jacobson, 19 Mass. App. Ct. 666, 674 (1985). Here, the defendant's only claim is that the evidence was insufficient to establish that he was the person who set the car ablaze. We disagree.

In the light most favorable to the Commonwealth, the evidence placed the defendant at the scene of the fire that morning, within minutes of the police response. The defendant had a longstanding hostility toward the victim, the owner of the car. Many times, the defendant told a neighbor that he hated the victim. Eventually, the victim sought and received a harassment prevention order against the defendant. A few hours before the fire, the defendant was in search of a lighter from a neighbor and others. After the fire, when the neighbor was returning to her apartment, she encountered the defendant who told her, "I told you I was going to burn it up, and he was pointing at the car."

From all of this evidence, especially the defendant's admission of guilt, the judge could properly have concluded that the defendant was responsible for burning the victim's car. Also, because we must view the evidence in the light most favorable to the Commonwealth, we decline the defendant's invitation to discount his admission of guilt as merely a drunken remark. Commonwealth v. Latimore, supra.

Judgment affirmed.

      The defendant was acquitted of violating a harassment prevention order.