author: NEYMAN, J.

text:
    SEA BREEZE ESTATES, LLC v. John A. JAREMA, trustee, & another.
    No. 17-P-1187
    Appeals Court of Massachusetts, Suffolk..
    Argued May 8, 2018 Decided October 15, 2018
    Roger S. Davis, Boston, for the plaintiff.
    Jennifer L. Markowski (David Traniello also present), Boston, for the defendants.
    Present: Sullivan, Neyman, & Englander, JJ.

      Of the Jarema Family Trust.

      Alexander A. Bove, Jr., trustee of the Jarema Family Trust.

   NEYMAN, J.

In this case, we consider whether a contract was modified by the parties, and whether the defendants are entitled to attorney's fees under a "prevailing party" provision of the contract. The plaintiff, Sea Breeze Estates, LLC (Sea Breeze) brought an action for breach of a purchase and sale contract (contract) in the Superior Court, alleging that the defendants terminated the contract without justification. The defendants, John Jarema and Alexander Bove, acting as trustees of the Jarema Family Trust (collectively, the trustees), filed various counterclaims alleging, among other things, that Sea Breeze breached the contract before termination by failing to make required monthly payments. In response to the trustees' motion for summary judgment, Sea Breeze contended that, prior to its cessation of monthly payments, the parties modified the contract and the trustees breached it as modified. A Superior Court judge disagreed and allowed, in part, the trustees' motion for summary judgment. Pursuant to § 18.10 of the contract, the judge also allowed the trustees' motion for attorney's fees and costs as the "prevailing party." We affirm.

Background. 1. The contract. In June of 2004, the parties entered into a contract for the sale of property at 187 Atlantic Street in Gloucester (property). Sea Breeze's goal was to develop a multifamily residential community on the property. Pursuant to § 2.1 of the contract, Sea Breeze agreed to purchase the property for $3,735,000 "presum[ing] and anticipat[ing]" that it would have the "opportunity for development of 44 units," and stipulating that, if it received approval to build more than forty-four units, it would pay the trustees $85,000 for each additional unit. A related provision, § 2.3(k), established that, even if Sea Breeze received approval to build fewer than forty-four units, it still "maintain[ed] the right to elect to purchase the property for the full purchase price."

Section 2.2(b) of the contract required Sea Breeze to pay the trustees $2,000 per month for a period of twenty-four months, "representing the time period anticipated for [Sea Breeze] to obtain the necessary Approvals" for the project. In the event that Sea Breeze did not obtain the necessary approvals within that allotted "Approval Period," § 2.2(c) authorized an "Extension Period" during which Sea Breeze could continue to make $2,000 monthly payments as separate consideration to keep the contract in effect. Whereas payments made during the approval period would be credited toward the final purchase price, any "Extension Payments" would not.

Two additional provisions of the contract are relevant to this case. Section 18.2 contains a so-called "merger" or "integration" clause, which states, inter alia, that the contract "represents the entire understanding of the parties," merges "[a]ll prior negotiations" into the written agreement, and "may only be amended by a writing executed by the parties." Section 18.10, captioned "Counsel Fees," entitles the "prevailing party" to recover reasonable counsel fees and costs stemming from "any litigation regarding the rights and obligations of the parties under this [c]ontract."

2. The extension period and modification proposals. Sea Breeze was unable to obtain the necessary permits and approvals within the twenty-four-month approval period, which ended in June of 2006. However, Sea Breeze continued to make the $2,000 monthly extension payments. On December 3, 2008, Michael Larkin, on behalf of Sea Breeze, wrote a letter to Bove informing him that its engineer had determined "that the property ha[d] a limited development opportunity of thirty-three (33) units," which, at $85,000 per unit, would result in a total purchase price of $2,805,000. The letter concluded by asking Bove to "respond so that this matter can be resolved." The parties communicated without progress over the next three-plus years.

On January 31, 2012, Patrick Larkin, a manager of Sea Breeze and brother of Michael Larkin, sent an electronic mail message (e-mail) to Jarema stating, "I spoke with you last week regarding your conversation with Atty. Bove. You indicated that we were all on the same page to move forward. When will we have something in writing from Atty. Bove[?]" Jarema responded to Larkin's January 31 e-mail with another e-mail stating, in relevant part, "It should be very shortly as I am scheduled to talk or see him this week." On February 1, 2012, Bove and Jarema discussed the proposed terms contained in Michael's December 3, 2008, letter. The next day, Bove sent a letter to Jarema (the Bove letter) stating that he was "willing to agree to a reduction to a total purchase price of $2,550,000" based upon thirty units at $85,000 per unit, subject to two specified conditions. First, the purchase price would "increase by $85,000 for each additional unit above thirty units." Second, the monthly extension payments would "increase from $2,000 a month to $3,000 a month, effective for the month following signing of the Addendum to the [contract]." On or about February 23, 2012, Jarema provided a copy of the Bove letter to Patrick. That same day, Patrick sent an e-mail to Jarema in which he stated, in pertinent part, "John, [w]e got your letter from Atty. Bove. ... Can we set up a meeting with all parties to finalize the adden[d]um to the P&S?" No meeting materialized, and in March of 2012, Sea Breeze, through Patrick, sent an e-mail to Jarema proposing four "options" for the trustees to "review to determine the next step forward with the project." None of the options included the terms delineated in the Bove letter. The e-mail concluded with the following sentence: "We are requesting a meeting with all parties so that these may be discussed and an option can be agreed upon by all parties." The parties never agreed upon any option.

3. Cessation of extension payments. In April of 2012, Sea Breeze stopped making monthly extension payments. On August 7, 2012, Sea Breeze demanded that the trustees sign an amendment to the contract in accordance with the terms of the Bove letter. The trustees declined. On August 16, 2012, Bove advised Sea Breeze in writing that the contract "has been terminated in all respects." On August 28, 2012, Sea Breeze responded to Bove and denied that the contract and the "obligations therein" were "extinct."

4. The litigation. Sea Breeze commenced this action against the trustees in August of 2014, alleging breach of contract, violation of the covenant of good faith and fair dealing, and seeking specific performance and an accounting. The trustees filed counterclaims alleging breach of contract, slander of title, interference with advantageous relations, violation of G. L. c. 93A, violation of the implied covenant of good faith and fair dealing, and seeking a declaratory judgment that the contract was no longer in effect.

Following a hearing on the parties' cross motions for summary judgment, the judge allowed the trustees' motion as to (a) their counterclaims for breach of contract and declaratory judgment, and (b) all of Sea Breeze's claims, but awarded no damages thereon. The judge also allowed Sea Breeze's motion as to the trustees' counterclaims for slander of title and violation of c. 93A. Sea Breeze filed a motion for reconsideration, which the judge denied.

Thereafter, the parties filed cross motions for attorney's fees and costs. In a written memorandum and order, the judge awarded the trustees $70,000 in attorney's fees (out of $111,802 they had requested) and $12,126 in costs pursuant to the prevailing party provision at § 18.10 of the contract. Sea Breeze's appeal ensued.

Discussion. Sea Breeze contends that the judge erred in granting the trustees' motion for summary judgment as to the claims and counterclaims related to breach of contract. Specifically, it asserts that (1) the contract was amended as a result of the Bove letter and related communications; (2) even if the parties did not amend the contract in writing, their conduct demonstrated that they had orally agreed to modify the contract; and (3) the trustees breached the contract as modified, and thus were not entitled to summary judgment.

We review a grant of summary judgment de novo to determine 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." Casseus v. Eastern Bus Co., 478 Mass. 786, 792, 89 N.E.3d 1184 (2018) (quotation omitted). "The moving party bears the burden of affirmatively demonstrating the absence of a triable issue." Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6, 887 N.E.2d 244 (2008). If the moving party carries its burden, "the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact." French King Realty Inc. v. Interstate Fire & Cas. Co., 79 Mass. App. Ct. 653, 659-660, 948 N.E.2d 1244 (2011).

We begin by reviewing fundamental principles of contract law relevant to the transaction at issue. "A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." I & R Mechanical, Inc. v. Hazelton Mfg. Co., 62 Mass. App. Ct. 452, 454, 817 N.E.2d 799 (2004), quoting from Restatement (Second) of Contracts § 1 (1981). "Contract formation requires a bargain in which there is a manifestation of mutual assent to the exchange." I & R Mechanical, Inc., supra at 454-455, 817 N.E.2d 799. This manifestation of mutual assent, otherwise known as a "meeting of the minds," occurs when there is "an offer by one [party]" and an "acceptance of it by the other."

Id. at 455, 817 N.E.2d 799. "[A]n offer is a manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it." Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 383, 805 N.E.2d 957 (2004) (quotation omitted). Acceptance exists where the offeree assents to the offer "in the terms in which it is made." Moss v. Old Colony Trust Co., 246 Mass. 139, 148, 140 N.E. 803 (1923). See Situation Mgt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878, 724 N.E.2d 699 (2000) ("[T]o create an enforceable contract, there must be agreement between the parties on the material terms of that contract"). "[A] conditional acceptance or one that varies from the offer in any substantial respect is in effect a rejection and is the equivalent of a new proposition." Moss, supra at 148, 140 N.E. 803. With these principles in mind, it is axiomatic that "[e]xpectations and negotiations fall far short of a binding agreement." Brighton Packing Co. v. Butchers' Slaughtering & Melting Ass'n, 211 Mass. 398, 405, 97 N.E. 780 (1912).

1. Written modification. The written communications between the parties did not constitute a modification of the contract. See Blomendale v. Imbrescia, 25 Mass. App. Ct. 144, 147, 516 N.E.2d 177 (1987). As discussed infra, the parties never formally "executed" a "writing" as required by both § 18.2 of the contract and by the Statute of Frauds, G. L. c. 259, § 1. Moreover, their correspondence demonstrates that they failed to reach a "meeting of the minds" as to the material terms of a modification. See Situation Mgt. Sys., Inc., supra at 878, 724 N.E.2d 699. Although the December 3, 2008, letter from Sea Breeze to the trustees may have constituted an offer, see Uno Restaurants, Inc., 441 Mass. at 383, 805 N.E.2d 957, the Bove letter rejected that offer by introducing two new conditions -- a per unit increase in purchase price on each additional unit above thirty units, and a fifty per cent increase in the monthly extension payments. See Moss, supra at 148, 140 N.E. 803 ; Massachusetts Hous. Fin. Agency v. Whitney House Assocs., 37 Mass. App. Ct. 238, 241, 638 N.E.2d 1378 (1994) ("A substantial variation in contract terms incident to a purported acceptance is not a binding acceptance but a counter offer"). There is no ambiguity in the Bove letter; nor does Sea Breeze argue that there are any facts in the summary judgment record evincing any ambiguity as to the manner in which the content of the Bove letter was conveyed to Sea Breeze.

Likewise, Patrick's February 23, 2012, e-mail neither "manifested assent" to the conditions stated in the Bove letter, nor even acknowledged them. Furthermore, Patrick's March, 2012, e-mail rejected the Bove letter's terms by proposing four alternative "options." See Moss, supra at 148, 140 N.E. 803. There is no written evidence that the trustees ever responded to the March, 2012, e-mail, let alone that they agreed to any of its suggestions. As a result, the parties' written communications represented nothing more than "negotiations toward carrying ... out" a proposed modification, not a binding agreement. Brighton Packing Co., 211 Mass. at 405, 97 N.E. 780. Accordingly, the judge did not err in allowing partial summary judgment as to the claims predicated on the written communications. See Situation Mgt. Sys., Inc., 430 Mass. at 879, 724 N.E.2d 699 (although the question whether a contract has been made is usually one of fact, where the evidence consists only of writings or is uncontradicted, it is a question of law).

2. Oral modification. Recognizing the insufficiency of the written communications as an enforceable modification, Sea Breeze contends that it raised a genuine issue of material fact as to whether the parties orally agreed to modify the contract. The argument is unavailing.

The oral modification claim faces two preliminary hurdles. First, the Statute of Frauds bars suit "[u]pon a contract for the sale of lands ... or of any interest in or concerning them ... [u]nless the promise, contract or agreement ... is in writing and signed by the party to be charged therewith." G. L. c. 259, § 1. Second, § 18.2 of the contract provides that it "may only be amended by a writing executed by the parties hereto." Sea Breeze disputes neither the application of the Statute of Frauds to the present case, see Restatement (Second) of Contracts §§ 125, 127 (1981), nor the existence of the merger clause and provision requiring any modification to be in writing. Rather, it contends that Massachusetts case law authorizes oral modifications to contracts, even in the face of such obstacles.

We agree that Massachusetts case law has recognized limited factual circumstances in which an agreement may be orally modified in the face of the Statute of Frauds. See McKinley Invs., Inc. v. Middleborough Land, LLC, 62 Mass. App. Ct. 616, 620, 818 N.E.2d 627 (2004). Likewise, our case law delineates narrow exceptions in which an oral modification may survive despite a provision that an agreement may only be amended by a writing. See, e.g., Cambridgeport Sav. Bank v. Boersner, 413 Mass. 432, 439, 597 N.E.2d 1017 (1992). Further, an agreement to modify a contract may be express, or may be inferred from the attendant circumstances and conduct of the parties. See id. That notwithstanding, a party asserting that an oral modification occurred must present evidence that the parties reached an agreement as to its terms. See Vasconcellos v. Arbella Mut. Ins. Co., 67 Mass. App. Ct. 277, 280, 853 N.E.2d 571 (2006) ("An oral contract, like any other, requires an offer, acceptance, and consideration").

The present case does not fall within any of the limited exceptions referenced above. Sea Breeze has presented no evidence that the parties expressly agreed to the "material terms" of a modification, see Situation Mgt. Sys., Inc., 430 Mass. at 878, 724 N.E.2d 699, and no such agreement can be inferred from the circumstances. See Cambridgeport Sav. Bank, supra at 439 n.10, 597 N.E.2d 1017 ("The evidence of a subsequent oral modification must be of sufficient force to overcome the presumption that the integrated and complete agreement, which requires written consent to modification, expresses the intent of the parties"); Wells Fargo Bus. Credit v. Environamics Corp., 77 Mass. App. Ct. 812, 817, 934 N.E.2d 283 (2010) (where a merger clause exists, "the parol evidence must be of sufficient strength to present an ambiguity between the actual conduct of the parties and the contract").

Regarding an express agreement, Sea Breeze has not identified any communication, testimony, or exhibit in the record demonstrating that the parties expressly agreed to any identified terms, let alone "material" terms. See id. ("[A]mbiguity cannot be predicated solely on statements in affidavits" [citation omitted] ). Contrast Moskow v. Burke, 255 Mass. 563, 566-567, 152 N.E. 321 (1926) (holding that "the jury could have found upon the testimony of the plaintiff" that the asserted oral modification had occurred); Dennis v. Kaskel, 79 Mass. App. Ct. 736, 741, 950 N.E.2d 68 (2011) (finding a dispute of material fact where deposition testimony differed as to whether there was a specific agreement).

Similarly, the conduct of the parties and attendant circumstances here do not support an inference that the parties agreed, or even intended to agree, to modify the contract. See Cambridgeport Sav. Bank, supra at 439 n.10, 597 N.E.2d 1017. To the contrary, the evidence reflects that Sea Breeze, at every turn, pushed for the parties to meet so that they could reach an agreement as to the terms of a written addendum. Far from being of "sufficient force to overcome the presumption that the integrated and complete agreement ... expresses the intent of the parties," id., the evidence in this case supports rather than negates that presumption. We have scoured the summary judgment record and detect no support for Sea Breeze's claims that the parties agreed to the material terms of a modification or that they waived the requirement of a writing itself. Contrast Madden v. Estin, 28 Mass. App. Ct. 392, 395, 551 N.E.2d 550 (1990). Thus, Sea Breeze cannot prove that the trustees breached the contract prior to April, 2012, and summary judgment was properly granted in the trustees' favor.

3. Attorney's fees. Sea Breeze also challenges the judge's award of attorney's fees to the trustees. Attorney's fees "as between opposing parties in litigation" are only allowed in "limited instances," including "pursuant to a valid contractual provision." Bournewood Hosp., Inc. v. Massachusetts Comm'n Against Discrimination, 371 Mass. 303, 311-312, 358 N.E.2d 235 (1976). As with the analysis of any contract provision, "[t]he object of the court is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose." USM Corp. v. Arthur D. Little Sys., Inc., 28 Mass. App. Ct. 108, 116, 546 N.E.2d 888 (1989).

In the present case, § 18.10 of the contract provides as follows:

"Counsel Fees. In the event of any litigation regarding the rights and obligations of the parties under this [c]ontract, the prevailing party shall be entitled to recover reasonable counsel fees, court costs and other direct litigation expenses."

Sea Breeze claims that the judge erred in awarding fees to the trustees under this provision because the judge allowed the trustees' summary judgment motions only in part, and also allowed Sea Breeze's summary judgment motions in part, which resulted in the dismissal of several of the trustees' counterclaims. Sea Breeze contends that this "split decision" compels a determination that neither party prevailed within the meaning of the contract. See Browning-Ferris Indus., Inc. v. Casella Waste Mgt. of Mass., Inc., 79 Mass. App. Ct. 300, 315, 945 N.E.2d 964 (2011) ("split decision" in litigation produced divided outcome, precluding either side from status of "prevailing party"). We disagree.

Although the court ruled in Sea Breeze's favor as to three of the trustees' counterclaims, the litigation did not end in a "divided outcome" within the meaning of our precedent. Contrast Browning-Ferris Indus., Inc., supra. The gravamen of the present case was (a) whether the contract was subject to an oral modification, and (b) which party breached it. The dispute over these issues constituted "litigation regarding the rights and obligations of the parties under this [c]ontract" within the meaning of § 18.10. Compare Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813, 828, 434 N.E.2d 611 (1982) (noting that attorney's fees provision applied "only to such fees and expenses ... incurred by either party as a result of actions or proceedings brought for the purpose of determining or enforcing either party's rights under the contract" [emphasis omitted] ). The trustees prevailed on their positions as to both of these issues. Furthermore, the record supports the trustees' argument that "the claims on which Sea Breeze prevailed on summary judgment constitute only a small portion of this case and a significantly lesser percentage of the time billed and fees incurred than those claims on which the [trustees] prevailed." See Waxman v. Waxman, 84 Mass. App. Ct. 314, 326-327, 995 N.E.2d 1138 (2013) (affirming award of costs to party prevailing on "most complex and valuable claim"). Under these circumstances, the judge did not err in awarding attorney's fees and costs to the trustees under § 18.10 of the contract.

We also disagree with Sea Breeze's contention that an alleged conflict between § 8.3 of the contract and the counsel fee provision in § 18.10 precludes an award of attorney's fees. In contrast to § 18.10 -- which addresses "litigation regarding the rights and obligations of the parties under this [c]ontract" and mandates that "the prevailing party shall be entitled to recover reasonable counsel fees" -- § 8.3 requires Sea Breeze to indemnify and defend the trustees against "all losses, costs, damages, liabilities and expenses," including reasonable counsel fees, "arising out of a breach by [Sea Breeze] of its warranties, representations and covenants" under the contract. In Massachusetts, indemnity clauses must be "fairly and reasonably construed to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished." Urban Inv. & Dev. Co. v. Turner Constr. Co., 35 Mass. App. Ct. 100, 107, 616 N.E.2d 829 (1993). See James B. Nutter & Co. v. Estate of Murphy, 478 Mass. 664, 669, 88 N.E.3d 1133 (2018), quoting from J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795, 494 N.E.2d 374 (1986) ("[W]e construe a contract as a whole, so as 'to give reasonable effect to each of its provisions' "). Unlike the § 18.10 "Counsel Fees" provision, § 8.3 references breaches of the contract's "warranties, representations and covenants." Construing the contract "as a whole" and giving "reasonable effect to each" provision, § 8.3 must be construed to refer to the defense and indemnity of third-party claims or other matters apart from "litigation regarding the rights and obligations of the parties [to the] contract," as contemplated by § 18.10 of the contract. See Astrolabe, Inc. v. Esoteric Technologies Pty, Ltd., U.S. Dist. Ct., No. 01-11352, slip op. at *16, 2002 WL 511520 (D. Mass. March 29, 2002) (where indemnity provision referenced "only breaches of ... 'covenants, warranties, and representations' and not each party's obligations under the contract," court held that parties intended any indemnification rights to arise out of suits from third parties, and rejected claim for costs in action between parties to the contract).

Finally, the judge did not abuse his discretion in awarding the trustees a total amount of $82,126 ($70,000 in attorney's fees and $12,126 in costs). See Linthicum v. Archambault, 379 Mass. 381, 388, 398 N.E.2d 482 (1979) ("[T]he amount of a reasonable attorney's fee is largely discretionary"). Here, the trustees sought an award of $111,802 in attorney's fees and $12,126 in costs. In calculating the final award, the judge considered the requisite common-law factors for analyzing the reasonableness of requested fees, including "the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney[s], the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases." Id. at 388-389, 398 N.E.2d 482. He determined that the claimed costs and attorney billing rates were reasonable. However, he reduced the requested attorney's fees by $41,802 because the trustees did not succeed on certain counterclaims, and due to inefficiencies created by transitioning the case among different lawyers. This is the precise type of inquiry and analysis mandated by Massachusetts law and we discern no abuse of discretion in the judge's decision here. See Brady v. Citizens Union Sav. Bank, 91 Mass. App. Ct. 160, 161-162, 71 N.E.3d 925 (2017).

Judgment affirmed.

      Sea Breeze also alleged violation of the covenant of good faith and fair dealing, and sought specific performance and an accounting.

      Section 5.1 of the contract defines "Approvals" as the "permits and approvals from state, county, municipal and federal authorities."

      Section 2.2(c) provides:
      "In the event the [c]ontract is extended beyond the 24 month Approval Period (into the 'Extension Period'), the additional Two Thousand and 00/100 Dollar ($2,000.00) monthly deposits will continue to be made, however, they will not be credited against the Purchase Price and shall he retained by the Seller as separate consideration for such extension periods. These additional deposits shall be referred to as the 'Extension Payments.' "

      Massachusetts cases often use the terms "merger clause" and "integration clause" interchangeably. See, e.g., Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 48, 809 N.E.2d 1017 (2004) (referencing "an integration [or merger] clause"). For purposes of our analysis here, we intend no distinction between the two.

      As the Larkins share a surname, we refer to them by their first names to avoid confusion.

      The trustees claimed that the Bove letter was subject to the attorney-client privilege, and did not provide it to Sea Breeze in discovery. Viewing the evidence in the light most favorable to Sea Breeze, we accept that Jarema shared the letter with Patrick.

      Sea Breeze never made any monthly payment of $3,000 as contemplated in the Bove letter.

      The judge determined that the trustees' counterclaim for breach of the covenant of good faith and fair dealing was moot. The parties do not challenge that ruling on appeal.

      A second judge subsequently allowed Sea Breeze's motion for partial summary judgment as to the trustees' counterclaim for interference with advantageous relations.

      We are not persuaded by Sea Breeze's argument that the trustees were not the "prevailing party" because the judge declined to award damages on their counterclaims. As discussed, supra, the present litigation stemmed from and centered on Sea Breeze's claim, rejected on summary judgment, that the contract was orally amended and breached by the trustees. We agree with the judge's determination that the trustees "were far more successful than was Sea Breeze in achieving their respective goals."

      The trustees also seek reasonable attorney's fees and costs incurred on appeal. The plain language of § 18.10 of the contract entitles them to such an award. Accordingly, the trustees may submit to this court an application for appellate attorney's fees and costs, with any appropriate supporting materials, within fourteen days of the date of the rescript. See Fabre v. Walton, 441 Mass. 9, 10-11, 802 N.E.2d 1030 (2004). Sea Breeze shall have ten days thereafter to respond.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Reinaldo PRADO.
    No. 17-P-900
    Appeals Court of Massachusetts, Middlesex..
    Argued May 4, 2018 Decided October 17, 2018
    Jeffrey G. Harris, Boston, for the defendant.
    Emily K. Walsh, Assistant District Attorney, for the Commonwealth.
    Present: Agnes, Neyman, & Sacks, JJ.
   NEYMAN, J.

In this case, we are asked to determine whether the act of forcing a person to penetrate her own genital opening constitutes rape within the meaning of G. L. c. 265, § 22. We hold that it does, and thus affirm the order denying the defendant's motion for new trial.

Background. 1. Procedural history. Following a jury trial in the Superior Court, the defendant, Reinaldo Prado, was convicted of one count of aggravated rape, see G. L. c. 265, § 22 (a ), three counts of armed robbery, see G. L. c. 265, § 17, and three counts of witness intimidation, see G. L. c. 268, § 13B. Represented by the same attorney he had at trial, the defendant appealed. A panel of this court affirmed the judgments in a decision issued pursuant to our rule 1:28. See Commonwealth v. Prado, 86 Mass. App. Ct. 1103, 2014 WL 3375521 (2014).

More than two years later, the defendant, represented by new counsel, filed a motion for new trial, claiming that his trial counsel was ineffective for (a) failing to argue that G. L. c. 265, § 22, does not contemplate rape by compelled self-penetration; and (b) failing to challenge the sufficiency of the evidence of armed robbery where the Commonwealth proved only that the defendant used a BB gun and not a firearm as alleged in the indictment. Following a hearing, the judge issued a written memorandum of decision and order denying the motion for new trial. The defendant now appeals therefrom.

2. Facts from trial. The charges against the defendant arose from two robberies and sexual attacks that occurred in Burlington and Tewksbury on January 24 and 25, 2009. In both instances, the defendant responded to advertisements for adult services on the Internet Web site "Craigslist," arranged to meet the victims at a hotel, robbed them at gunpoint, and threatened to find or to kill them if they contacted the police. With respect to the January 24 incident, the defendant was convicted of aggravated rape for forcing the victim to put her fingers into her vagina.

Specifically, during the robbery he pulled out a black gun, backed the victim into a computer chair in the hotel room, touched her breast, and emptied the contents of her purse onto the bed. After the victim grabbed her engagement ring from among those items, the defendant directed her at gunpoint to insert her fingers into her vagina. The victim did so, against her will.

The evidence at trial was corroborated through, among other things, (a) a surveillance video recording; (b) the defendant's statements to the police; (c) the retrieval of several items from the defendant and from his truck, including a BB gun, a box of commercial grade electrical zip ties consistent with those used to restrain two of the victims, a cellular telephone (cell phone) belonging to one of the victims, handwritten telephone numbers for other Craigslist advertisements offering adult services, and papers bearing the telephone number of one of the victims and the Burlington hotel address; and (d) the retrieval of another cell phone, laptop computers, laptop computer carrying cases, and passports, all belonging to the victims of the two incidents, located during a search of the defendant's apartment pursuant to a search warrant.

3. Legal standards. A motion for new trial may be granted only if it appears that justice may not have been done. Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). Such motions are committed to the sound discretion of the judge, Commonwealth v. Moore, 408 Mass. 117, 125, 556 N.E.2d 392 (1990), and "are granted only in extraordinary circumstances," Commonwealth v. Comita, 441 Mass. 86, 93, 803 N.E.2d 700 (2004). "Reversal for abuse of discretion is particularly rare where the judge acting on the motion was also the trial judge." Commonwealth v. Schand, 420 Mass. 783, 787, 653 N.E.2d 566 (1995).

Where, as here, a motion for a new trial is based on ineffective assistance of counsel, the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). See Commonwealth v. Millien, 474 Mass. 417, 432, 50 N.E.3d 808 (2016) (second prong of ineffective assistance test met if there is substantial risk of miscarriage of justice arising from counsel's failure).

Discussion. 1. Aggravated rape. The defendant claims that G. L. c. 265, § 22, does not criminalize compelled self-penetration. He contends that because there was no physical contact between the defendant and the victim, the evidence failed to satisfy the plain language of the statute requiring "unnatural sexual intercourse." He further argues that there is no Massachusetts precedent allowing a conviction of rape upon evidence of compelled self-penetration, that § 22 is ambiguous and thus must be construed against the Commonwealth under the rule of lenity, and that § 22 is unconstitutionally vague.

The Commonwealth responds that the defendant's arguments ignore established case law broadly interpreting nonconsensual unnatural sexual intercourse to include myriad sexual acts forced on unwilling victims. See Commonwealth v. Gallant, 373 Mass. 577, 590, 369 N.E.2d 707 (1977). We conclude that Massachusetts law establishes that unnatural sexual intercourse is broad enough to include compelled penetration of a victim's genital opening.

Our analysis begins with the plain language of the statute and, in particular, the words "unnatural sexual intercourse." "We interpret statutory language to give 'effect consistent with its plain meaning and in light of the aim of the Legislature' unless to do so would achieve an 'absurd' or 'illogical' result." Commonwealth v. Scott, 464 Mass. 355, 358, 982 N.E.2d 1166 (2013), quoting Sullivan v. Brookline, 435 Mass. 353, 360, 758 N.E.2d 110 (2001). "Words and phrases shall be construed according to the common and approved usage of the language." Scott, supra, quoting Opinion of the Justices, 313 Mass. 779, 781-782, 47 N.E.2d 260 (1943). "However, the construction of a word or phrase may vary from its plain meaning when such a meaning would 'involve a construction inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute' " (citation omitted). Scott, supra.

Prior to 1974, G. L. c. 265, § 22, provided: "Whoever ravishes and carnally knows a female by force and against her will shall be punished." By St. 1974, c. 474, § 1 (1974 amendment), entitled "An Act redefining the elements constituting the crime of rape and related offenses," the Legislature amended § 22. The new language provided, in relevant part, "Whoever has ... unnatural sexual intercourse with a person, and compels such person to submit by force and against his will," shall be guilty of rape.

In Gallant, 373 Mass. at 583-584, 369 N.E.2d 707, the Supreme Judicial Court analyzed the meaning and the impact of the 1974 amendment, and held that it extended the protections of the Massachusetts rape statutes. The 1974 amendment effected a significant change in the law beyond abolishing artificial distinctions based on gender and replacing the archaic terminology of "ravishing" and "carnal knowledge" with the more contemporary "sexual intercourse." Id. at 584, 369 N.E.2d 707. Indeed, the 1974 amendment "necessarily rework[ed] the common law definition of rape," and "must be viewed as part of a comprehensive attempt to redefine the legal elements of rape." Id. at 583, 584, 369 N.E.2d 707. Under the amended law, "the definition of 'unnatural sexual intercourse' must be taken to include oral and anal intercourse, including fellatio, cunnilingus, and other intrusions of a part of a person's body or other object into the genital or anal opening of another person's body." Id. at 584, 369 N.E.2d 707. Moreover, the court specified that the scope of the term "unnatural sexual intercourse" is "broad," and that "the Legislature necessarily intended to treat modes of sexual connection other than common law rape as equally serious invasions of personal integrity." Id. at 584-585, 590, 369 N.E.2d 707. Consistent with the tenets of Gallant, subsequent case law recognized various modes and means of rape. See, e.g., Commonwealth v. Nuby, 32 Mass. App. Ct. 360, 362, 589 N.E.2d 331 (1992) ;

Commonwealth v. Guy, 24 Mass. App. Ct. 783, 786-787, 513 N.E.2d 701 (1987).

We turn to the conduct at issue in the present case. The defendant, while brandishing a gun during an armed robbery, forced the victim, against her will, to penetrate her vagina with her fingers. We conclude that such conduct constitutes a "mode[ ] of sexual connection" that embodies an "equally serious invasion[ ] of personal integrity" as common-law rape. Gallant, supra at 585, 369 N.E.2d 707. As the judge noted in her order denying the motion for new trial, the "gravamen of the [rape] charge, as set forth in the statute, is sexual penetration by force and against the [victim's] will or by threat of bodily injury." See Commonwealth v. Lopez, 433 Mass. 722, 726-727, 745 N.E.2d 961 (2001) ("Sexual intercourse is defined as penetration of the victim, regardless of degree"); Commonwealth v. Sherry, 386 Mass. 682, 687, 437 N.E.2d 224 (1982) ("The essence of the crime of rape, whether aggravated or unaggravated, is sexual intercourse with another compelled by force and against the victim's will or compelled by threat of bodily injury"). That is what occurred here.

The defendant counters that the definition of unnatural sexual intercourse does not include the conduct at issue here, because "[t]here was no physical contact." We disagree. First, there was physical contact here -- offensive, intrusive, and forced physical contact -- in the form of the victim's fingers inserted into her vagina by command of the armed defendant, backed by the threat of deadly force.

Second, to the extent that the defendant contends that there was no physical contact "by the defendant," the argument is still unavailing. Pursuant to G. L. c. 265, § 22 (a ), "there is no requirement that the sexual contact involve penetration of the victim by the perpetrator." Guy, 24 Mass. App. Ct. at 786, 513 N.E.2d 701. Rather, our precedent recognizes the myriad ways by which rape is perpetrated, even without physical contact by the defendant. See, e.g., Nuby, 32 Mass. App. Ct. at 362, 589 N.E.2d 331 (defendant guilty of forcible rape of child for compelling girl friend's son to penetrate her vagina with his tongue and fingers); Guy, supra at 784-787, 513 N.E.2d 701 (defendants guilty of rape for forcing victim to perform cunnilingus on two consenting females). See also State v. Thomas, 619 S.W.2d 513, 513 (Tenn. 1981) (defendant guilty of rape where he forced victim at gunpoint to perform oral sex on her husband). The common thread in these cases is some form of forced penetration compelled by the defendant, and not a literal touching by the defendant. Cf. Commonwealth v. Davidson, 68 Mass. App. Ct. 72, 74, 860 N.E.2d 24 (2007) ("our cases do not require that the defendant himself perform the touching" to be convicted of indecent assault and battery).

Third, and finally, we disagree with the defendant's argument that there was no physical contact within the meaning of Gallant because there was no "intrusion[ ] of a part of a person's body or other object into the genital or anal opening of another person's body." Gallant, 373 Mass. at 584, 369 N.E.2d 707. The facts of this case epitomize what § 22 (a ) prohibits: an intrusion into another's (i.e., the victim's) genital opening, by an object -- the victim's own fingers -- committed through the force of the defendant. See Lopez, 433 Mass. at 726-727, 745 N.E.2d 961 ("Sexual intercourse is defined as penetration of the victim, regardless of degree"); Commonwealth v. Cifizzari, 397 Mass. 560, 562, 576-577, 492 N.E.2d 357 (1986) (defendant's use of mop handle to penetrate victim constitutes rape within meaning of statute). See also People v. Scott, 271 Ill. App. 3d 307, 313, 207 Ill.Dec. 630, 648 N.E.2d 86 (1994) (victim's finger is object within meaning of Illinois aggravated criminal sexual assault statute); Kirby v. State, 625 So.2d 51, 55 (Fla. Dist. Ct. App. 1993) (where defendant forced victim to insert her fingers into her vagina, court held that finger is "object" within context of Florida sexual battery statute). That the defendant here chose to penetrate the victim with her fingers does not render the act a lesser crime. To the contrary, Gallant instructs that in view of the innumerable ways in which rape may be perpetrated, courts should not create artificial limits on the meaning of unnatural sexual intercourse. See id. at 590, 369 N.E.2d 707 ("[i]t is probable that the Legislature deemed fruitless any attempt to delineate the full variety of coercive sexual intrusions it wished to include in the overarching term 'unnatural sexual intercourse' "). See also Scott, supra ("If [the defendant] had grabbed [the victim's] hand and physically placed it in her vagina, we would not entertain any argument that intrusion had not occurred because her hand was not an object. The only difference between the hypothetical and the evidence here is the manner in which the assailant intruded the object upon the victim"). We decline to do so here, where "[i]t is difficult to imagine conduct more violative of social and behavioral expectations, or more disruptive of psychic integrity." Gallant, supra at 589-590, 369 N.E.2d 707. See Commonwealth v. Chretien, 383 Mass. 123, 131, 417 N.E.2d 1203 (1981), quoting Hayon v. Coca Cola Bottling Co., 375 Mass. 644, 648-649, 378 N.E.2d 442 (1978) (construction of statute "should advance rather than defeat the purpose of the statute").

We likewise reject the defendant's arguments that G. L. c. 265, § 22 (a ), is unconstitutionally vague, and that the rule of lenity mandates a different result. The defendant had sufficient notice that his actions constituted criminal felonious conduct as delineated in Gallant, 373 Mass. at 584-587, 369 N.E.2d 707 (articulating meaning of unnatural sexual intercourse and rejecting claim that child rape statute is unconstitutionally vague). See Robinson v. Berman, 594 F.2d 1, 2 (1st Cir. 1979) ("A statute whose terms have a commonly understood meaning or have been clarified by judicial explanation or by application to particular conduct is not unconstitutionally vague"). Furthermore, the defendant was on notice that the act of compelling a person to "play with herself" constitutes indecent assault and battery. Commonwealth v. Portonova, 69 Mass. App. Ct. 905, 905, 868 N.E.2d 1269 (2007). The rulings in Gallant, 373 Mass. at 584-587, 369 N.E.2d 707, and Portonova, supra at 905-906, 868 N.E.2d 1269, negate the defendant's claim that the rape statute is unconstitutionally vague. "The essence of the fair warning requirement embodied in the due process clause is that a person should not be punished for an act he could not know was criminal." Robinson, supra at 3. A person who commits an act while on notice that it violates one statute "ha[s] no cause to complain that he had no notice his conduct violated another statute," even where the maximum penalty under that other statute is more severe. Id., citing Gallant, supra at 586, 369 N.E.2d 707. Although the maximum penalty for rape exceeds that for indecent assault and battery, see G. L. c. 265, §§ 13H, 22, "an argument premised on the unconstitutionality of a statute for vagueness does not address the issue of differing potential punishments. Unless prosecutorial abuse of discretion in charging [a defendant] under the harsher statute is alleged ... we see no due process violation." Robinson, supra. See Gallant, supra at 586 n.11, 369 N.E.2d 707.

Moreover, the defendant was also on notice that the distinction between the crimes of rape and indecent assault and battery is the element of penetration. See Commonwealth v. Donlan, 436 Mass. 329, 335-336, 764 N.E.2d 800 (2002) ("Indecent assault and battery is a lesser included offense of rape of a child by force.... The difference between the two offenses is the element of penetration"); Commonwealth v. Walker, 426 Mass. 301, 304, 687 N.E.2d 1246 (1997) (elements of rape and indecent assault and battery are same "except for the aggravating factor of penetration in the rape charge that distinguishes the greater offense from the lesser offense"). Where the evidence in the present case involved the additional element of penetration, and where the defendant was on notice of the rulings in Gallant and Portonova, supra, he had sufficient notice that his conduct constituted rape and derives no benefit from the rule of lenity. See Commonwealth v. Nylander, 26 Mass. App. Ct. 784, 787, 532 N.E.2d 1223 (1989) (evidence of penetration necessary to prove acts of rape "in order to differentiate those acts from other prohibited sexual touchings"). In addition, a holding that an indecent assault and battery, aggravated by penetration, constitutes the same offense as a forced touching without penetration would create an illogical and absurd result. See Scott, 464 Mass. at 358, 982 N.E.2d 1166. Accordingly, the statute and Massachusetts common law provide the defendant clear warning as to proscribed activities. See Commonwealth v. Poillucci, 46 Mass. App. Ct. 300, 305, 705 N.E.2d 626 (1999) ("Given that the defendant's conduct fell squarely within the statute, counsel lacked a cogent argument that the statute was unconstitutionally vague as applied to the defendant").

In sum, the defendant's act of forcibly penetrating the victim's vagina with her own fingers fell within the scope of unnatural sexual intercourse under G. L. c. 265, § 22. It follows, therefore, that counsel was not ineffective. See Saferian, 366 Mass. at 96, 315 N.E.2d 878. Accordingly, the judge correctly denied the motion for new trial on this basis.

2. Armed robbery indictment. Citing Commonwealth v. Garrett, 473 Mass. 257, 41 N.E.3d 28 (2015), the defendant also contends that his trial counsel was ineffective for not challenging the purported discrepancy between the armed robbery indictment and the evidence, which proved only that he used a BB gun and not a "dangerous weapon, to wit: firearm" as alleged in the indictment. The argument is unavailing.

In Garrett, the defendant was indicted and convicted of masked armed robbery by means of a firearm. Id. at 257-258, 41 N.E.3d 28. The defendant was not charged with armed robbery by means of a dangerous weapon. Id. at 258 n.1, 41 N.E.3d 28. Rather, the relevant indictments alleged, among other things, that the defendant, armed "with a handgun," committed armed robbery while masked (emphasis supplied). Id. at 264, 41 N.E.3d 28. The evidence at trial, however, showed that the defendant used a BB gun. Id. at 258, 41 N.E.3d 28. The Supreme Judicial Court vacated the judgment because the court determined that a BB gun is not a firearm for the purpose of the armed robbery statute and, thus, the evidence in support of the indictment was insufficient. Id. at 263-264, 41 N.E.3d 28. The case was remanded for entry of a verdict of guilty on the lesser included offense of unarmed robbery. See id. at 267, 41 N.E.3d 28. The court noted that "[t]he defendant was not indicted for, and thus cannot be convicted of, armed robbery with a dangerous weapon." Id. at 267 n.12, 41 N.E.3d 28.

In the present case, by contrast, the evidence was sufficient to support the crime as charged in the indictment. The armed robbery indictment alleged, among other things, that the defendant, "armed with a dangerous weapon, to wit: firearm did assault [the victim] with intent to rob her, and thereby did rob ..." (emphasis supplied). The Commonwealth's evidence amply demonstrated that the defendant was armed with a dangerous weapon as that term has been defined in our case law. See Commonwealth v. Powell, 433 Mass. 399, 402, 742 N.E.2d 1061 (2001) (replica or fake weapon is dangerous weapon "if the victim would, in all the surrounding circumstances, reasonably believe that the object was a real weapon"). By drawing the indictment to allege the crime of armed robbery "with a dangerous weapon," rather than "with a handgun," the Commonwealth here avoided the concerns delineated in Garrett, 473 Mass. at 268, 41 N.E.3d 28 (Gants, C.J., concurring) ("Had the Commonwealth drawn its indictment to allege the crime of armed robbery with a dangerous weapon, the defendant would properly have been found guilty of armed robbery because the BB gun in this case was a dangerous weapon, which under our case law includes a weapon that appears to be a firearm, even if not actually a firearm"). Where, as here, "it reasonably appeared, in all the circumstances, that the object in the defendant's possession was capable of inflicting serious bodily injury or death, the jury could conclude that that object was a dangerous weapon and that the robbery was therefore an armed robbery." Powell, supra at 404, 742 N.E.2d 1061.

The defendant maintains that the problem raised in Garrett nonetheless persists here because the indictment specified the dangerous weapon as, "to wit: firearm." We disagree. The "to wit" language in the indictment constituted a nonfatal variance under our precedent. See Commonwealth v. Harris, 9 Mass. App. Ct. 708, 710-711, 404 N.E.2d 662 (1980) (judgment predicated on armed robbery with gun affirmed where Commonwealth tried case on basis of victim's testimony that underlying robbery was committed with gun, even though indictment specified that defendant was "armed with a dangerous weapon, to wit, a knife"). The defendant's argument ignores that he was convicted of the charges as submitted to the jury. The jury instruction correctly specified that the Commonwealth was required to prove that the defendant "was armed with a dangerous weapon," and did not specify that the weapon must be a firearm. Thus, in the context of this case, the "to wit" language was superfluous. See Commonwealth v. Grasso, 375 Mass. 138, 139, 375 N.E.2d 708 (1978) ("a defendant is not to be acquitted on the ground of variance between the allegations and proof if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defense"); Commonwealth v. A Juvenile, 365 Mass. 421, 440, 313 N.E.2d 120 (1974) (language in indictment or complaint specifying means of death is superfluous and, thus, "defendant is not entitled to an acquittal by reason of the Commonwealth's failure to prove unnecessary allegations in the description of a crime"); Commonwealth v. Salone, 26 Mass. App. Ct. 926, 930, 525 N.E.2d 430 (1988) ("The language in the indictment specifying the particular weapon used is superfluous"). Finally, "[t]he particular type of weapon with which the armed robbery was committed was not an essential element of the crime" of armed robbery. Harris, supra at 712, 404 N.E.2d 662. Accordingly, the defendant has failed to demonstrate ineffective assistance of counsel and, thus, the judge correctly denied the motion for new trial on this basis.

Order denying motion for new trial affirmed.

      The motion judge also was the trial judge.

      With respect to the January 25, 2009, attack, the defendant bound the victims' hands together with zip ties; stole from them $340 cash, two passports, two cellular telephones, bank cards, drivers' licenses, and two computers; ordered one victim to perform oral sex on the other; and warned them that he had their identification and would kill them if they contacted the police. As to this incident, the jury convicted the defendant of armed robbery and intimidation of a witness, and acquitted him of aggravated rape and indecent assault and battery.

      The defendant was also charged with and prosecuted for another count of rape predicated on evidence that he forced his finger into the victim's vagina. As reflected by the specific verdict slips, the jury acquitted the defendant on that count, but convicted him of rape for forcing the victim to penetrate her vagina with her own fingers.

      By St. 1980, c. 459, § 6, entitled "An Act providing graduated penalties and victim compensation for the crime of rape and related offenses," the Legislature further amended G. L. c. 265, § 22. Among other things, this amendment created subsections "(a )" (delineating elements and punishment for aggravated rape) and "(b )" (delineating elements and punishment for nonaggravated rape), provided that rape committed "during the commission" of armed robbery or other enumerated crimes constituted aggravated rape, and provided enhanced penalties for rape committed with aggravating circumstances.

      Consistent with the language in Gallant, the judge here instructed the jury, in relevant part, that "[u]nnatural sexual intercourse includes oral and anal intercourse including [fellatio] and cunnilingus and other intrusions of a part of a person's body or other object into the genital or anal opening of another's body."

      The defendant cites to cases in other jurisdictions holding that compelled self-penetration does not constitute rape. See, e.g., State v. Bryant, 670 A.2d 776, 779 (R.I. 1996). That notwithstanding, we adhere to Massachusetts case law interpreting the language of our rape statutes which, as discussed, compels a different result.

      Consistent with the holding in Powell, supra at 404, 742 N.E.2d 1061, the judge in the present case instructed, in relevant part, "A person who uses a toy gun or other fake weapon to commit a robbery may be convicted of armed robbery if the victim reasonably took it to be a real weapon capable of inflicting bodily injury. The law of armed robbery does not require the Commonwealth to show that the instrument was actually used. It is sufficient if the Commonwealth proves beyond a reasonable doubt that the defendant was actually armed with a dangerous weapon."

      Of course, a BB gun may qualify as a dangerous weapon in its own right, without regard to its resemblance to some other form of weapon. Compare Powell, supra at 404, 742 N.E.2d 1061.

      The defendant did not object to the judge's comprehensive instructions regarding the dangerous weapon element of armed robbery.


author: ENGLANDER, J.

text:
    COMMONWEALTH v. Geoffrey F. WATSON.
    No. 17-P-623
    Appeals Court of Massachusetts, Suffolk..
    Argued February 16, 2018 Decided October 17, 2018
    Kevin P. DeMello for the defendant.
    Ioana Moldovan (Helle Sachse, Assistant District Attorney, also present) for the Commonwealth.
    Present: Wolohojian, Milkey, & Englander, JJ.
   ENGLANDER, J.

After a jury-waived trial in Boston Municipal Court, the defendant was convicted of violating that portion of an abuse prevention order that required him to "stay away from the plaintiff's residence." On appeal, the defendant argues, among other things, that the evidence was insufficient to support a guilty finding, because there was no evidence that he entered the property on which the residence was located, or otherwise intruded on it. Although it is true that the defendant did not cross the property boundary or otherwise physically intrude onto the property, we conclude that the evidence was nonetheless sufficient to prove beyond a reasonable doubt that he failed to "stay away" from the residence. We reach this conclusion because the phrase "stay away," although tethered to specific premises, is not limited solely to physical intrusion on them. On this basis, and because we conclude that the defendant's remaining arguments are without merit, we affirm.

Background. On August 25, 2015, E.C. obtained an ex parte abuse protection order against the defendant that subsequently was extended. The operative terms of the order are set forth in three numbered paragraphs. Paragraph 1 ordered the defendant "NOT TO ABUSE [E.C.] by harming, threatening or attempting to harm [her] physically or by placing [her] in fear of imminent serious physical harm, or by using force, threat or duress to make [her] engage in sexual relations." Paragraph 2 included two prohibitions. First, it ordered the defendant "NOT TO CONTACT [E.C.], in person, by telephone, in writing, electronically or otherwise, either directly or through someone else." Second, it ordered the defendant "to stay at least 100 yards away from [E.C.]." Finally, paragraph 3 ordered the defendant "TO

IMMEDIATELY LEAVE AND STAY AWAY FROM [E.C.'s] RESIDENCE, except as permitted in [two subsequent paragraphs that do not apply], located at [a specified street address]." Because E.C. lived in a multifamily dwelling, the order went on to specify that the defendant was required "to immediately leave and remain away from the entire apartment building or other multiple family dwelling in which [her] residence is located."

As the parties informed the judge at the commencement of the trial, the Commonwealth made no contention that the defendant had violated paragraphs 1 and 2 of the order, that is, by abusing, contacting, or coming within one hundred yards of E.C. Instead, the Commonwealth's sole contention was that the defendant violated paragraph 3 of the order by not staying "away from the entire apartment building ... in which [E.C.'s] residence was located."

E.C. did not testify at trial. The Commonwealth's sole witness was a police officer who drove to E.C.'s address at approximately 10:30 A.M. on September 22, 2015, in response to a "radio call." Other than the fact that the officer learned of E.C.'s address from the radio call, virtually nothing about the content of that call was admitted in evidence.

After the officer received the radio call, he arrived at E.C.'s address "within [five] minutes may be." Once there, he observed the defendant standing on the sidewalk outside the property. He was with other individuals, "like a group of friends talking." Separating the sidewalk from the property on which the building was located was a wrought iron fence that was "about knee high." At no point did the officer see the defendant inside the fence, or on the walkway or stairs leading to the building. According to the officer, the point on the sidewalk on which the defendant was standing was approximately twenty to twenty-five feet from the front door of the apartment building in which E.C. lived.

At the close of the evidence, the defendant moved for a required finding of not guilty, arguing, among other things, that there was no evidence that he violated the requirement that he stay away from E.C.'s residence, and that that provision was void for vagueness. Acknowledging that the order did not require the defendant to stay a particular distance away from the residence, the prosecutor argued that the judge could infer that the defendant was required to stay a "reasonable" distance away. She also suggested that a reasonable distance would be one hundred yards (to make it congruent with the express requirement of the order that the defendant stay one hundred yards away from E.C.).

The judge rejected the Commonwealth's argument that the order required the defendant to stay one hundred yards away from the residence, and he indicated that he thought the defendant's argument had some force. Nevertheless, the judge ultimately found the evidence sufficient, stating his view that "as a matter of law," being twenty-five feet away from the building -- which the judge characterized as "just on the outside of the property" -- was enough.

Discussion. 1. Sufficiency of the evidence. In reviewing the sufficiency of the evidence, we consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Here, what the evidence showed is not in material dispute. Rather, the determinative question is whether that evidence established that the defendant violated the requirement that he stay away from E.C.'s residence, which the order stated included "the entire apartment building" in which her residence was located.

We do not write on a clean slate. We first addressed what it means to be required to "stay away from" an identified residence or workplace more than two decades ago. See Commonwealth v. O'Shea, 41 Mass. App. Ct. 115, 116, 668 N.E.2d 861 (1996). There, an individual had obtained a G. L. c. 209A order requiring that the defendant stay away from her workplace. The defendant was charged with violating that provision after he had been observed going into and out of a commercial establishment separated by a side street from the property on which her place of work was located. Id. at 117, 668 N.E.2d 861. We rejected the defendant's contention that the scope of the requirement was limited to the building in question. Instead, we concluded that it "extends to all of the property on which the workplace is located[,] including the adjacent parking lot." Id. at 118, 668 N.E.2d 861. We noted that this interpretation "create[s] a safe haven for [the protected person] at her workplace, a place 'in which no further abuse need be feared.' " Id., quoting Commonwealth v. Gordon, 407 Mass. 340, 347, 553 N.E.2d 915 (1990).

At the same time, in O'Shea, we also rejected the Commonwealth's argument that being in the mere "vicinity" of the workplace was enough. As we explained,

"The word 'vicinity,' according to Black's Law Dictionary (6th ed. 1990), means, 'Quality or state of being near, or not remote; nearness; propinquity; proximity; a region about, near or adjacent ....' The word is so imprecise that if we
hold that the 'stay away' order means stay away from the 'vicinity' of the workplace, the order would fail to meet the requirement that it must be clear."

O'Shea, 41 Mass. App. Ct. at 118, 668 N.E.2d 861. Since the defendant in O'Shea had not "entered the area of the workplace," id., we concluded that he therefore could not be found guilty of violating the order. Id. at 118-119, 668 N.E.2d 861.

In Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785, 787 & n.3, 786 N.E.2d 425 (2003), the defendant did not enter the workplace from which he was required to stay away. However, after stopping his truck twenty to forty feet away from the workplace, he honked his horn, shouted obscenities, and made a threatening gesture to those in the workplace. Id. at 786, 786 N.E.2d 425. Concluding that, in this manner, the defendant had directly intruded into the workplace, we held that he could be found guilty of violating a stay-away order even though he had not crossed the property boundary. Id. at 787, 786 N.E.2d 425.

Taken together, O'Shea and Habenstreit thus recognize two ways that someone can violate an order to stay away from a workplace or residence: (1) entering the property on which the workplace or residence is located, or (2) taking actions that directly intrude on the workplace or residence. Intrusion in the latter situation does not require physical encroachment on the property. Rather, it is sufficient to take actions in close proximity to the property that have a direct impact inside the property identified in the stay-away order.

In the case before us, the Commonwealth presented no evidence that the defendant violated the order in either of these two ways: there is nothing to suggest that he went onto the property on which E.C.'s apartment building was located, and there is no evidence that he was doing anything outside that property other than talking with friends. The question then is whether O'Shea and Habenstreit establish the only circumstances under which a defendant can be found to have violated a stay-away order, or whether the phrase "stay away from the plaintiff's residence" also encompasses some other circumstances.

The word "away" denotes distance -- a distance the defendant must be "from the residence," but the word "away" does not give rise to a boundary that is mathematically precise. Instead, mindful of the purpose of this aspect of c. 209A orders, we conclude that a defendant may also be found to have failed to "stay away" where, although outside the property boundary, he nonetheless has positioned himself sufficiently proximate to it that he would be able to abuse or to contact the plaintiff, in the event that the plaintiff were on the property, or entering or leaving it. See Commonwealth v. Goldman, 94 Mass. App. Ct. 222, 113 N.E.3d 392 (2018) ; Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 113 N.E.3d 382 (2018). Compare State v. Williams, 226 N.C. App. 393, 410, 741 S.E.2d 9 (2013) ("Certainly the order must mean that defendant could not be so close ... that he would be able to observe her, speak to her, or intimidate her in any way"). We reach this conclusion based not only on the common understanding of the phrase "stay away" but also on its meaning within the specific framework and design of the abuse prevention order -- to provide a "safe haven" "in which no further abuse need be feared." Gordon, 407 Mass. at 347, 553 N.E.2d 915. O'Shea, 41 Mass. App. Ct. at 118, 668 N.E.2d 861. We would fail to serve this basic purpose were we to adopt a standard that allowed a defendant to position him or herself immediately outside the property boundary, or to stand in the plaintiff's path, such that the plaintiff was fearful to leave or return home. The standard we have articulated has limits; it continues to be tethered to the property boundary, and to places proximate to it. Cf. Commonwealth v. Forbes, 86 Mass. App. Ct. 197, 201, 14 N.E.3d 348 (2014) (rejecting textual interpretation that encompassed "a mathematical precision that was never intended"). The standard thus fulfils the purpose of the statute, while still providing a defendant fair notice of what conduct would violate the order. See, e.g., Commonwealth v. McGhee, 472 Mass. 405, 414, 35 N.E.3d 329 (2015) (judicial construction can alleviate vagueness concerns).

We turn then to applying that standard here. As noted, the defendant had placed himself immediately outside the property boundary and was there long enough to be observed by the person who called the police, and the defendant remained there until the officer arrived five minutes later. This evidence was sufficient to allow the judge to find that the defendant positioned himself sufficiently proximate to the protected party's residence that he would have been able to contact or to abuse her. There accordingly was sufficient evidence to find a violation of the order.

2. The notice issue. The defendant next argues that the Commonwealth failed to prove that he had notice of the c. 209A order prior to his violation of it on September 22, 2015. The relevant facts are that the order was initially entered ex parte on August 25, 2015, and the court scheduled an extension hearing for September 4, 2015. There were several efforts to serve the defendant with the temporary order at his home address over the several days between August 25 and September 4, none of which succeeded. The hearing went forward on September 4, 2015, without the defendant present, at which the order was extended until September 2, 2016.

The defendant was thereafter served in hand while present in court on September 11, 2015. This service was established at trial by the court's docket sheet, which showed that the defendant was served with a copy of the c. 209A order by a court officer, in the court house.

The defendant claims that the docket sheet was inadequate evidence of service, and that in any event reliance upon it to prove notice violated the confrontation clause. We disagree. Our cases establish that a court may take judicial notice of its docket sheet, and that the docket sheet is prima facie evidence of the events recorded therein. See, e.g., Jarosz v. Palmer, 436 Mass. 526, 530, 766 N.E.2d 482 (2002) ; Commonwealth v. Reddy, 74 Mass. App. Ct. 304, 311, 906 N.E.2d 359 (2009) ; Commonwealth v. Podoprigora, 46 Mass. App. Ct. 928, 929, 710 N.E.2d 223 (1999). See also Brodin & Avery, Massachusetts Evidence § 2.8.1 (2018). As such, it is prima facie evidence that the defendant was served with the c. 209A order on September 11, 2015.

Moreover, there is no confrontation clause problem in relying on the docket sheet to prove notice here. Just recently, in Commonwealth v. McEvoy, 93 Mass. App. Ct. 308, 311-312, 100 N.E.3d 767 (2018), we explained that the Commonwealth could rely on the records of the registry of motor vehicles to establish that a criminal defendant had received notice that his driver's license had been suspended. We explained that the registry records were not "testimonial," for confrontation clause purposes, because the records were "maintained in the normal course of business," and because the records were created with "no particular prosecutorial use in mind." Id. at 315-316, 100 N.E.3d 767 (quotation omitted). The same is true of the docket sheet here, which is maintained in the normal course of court business. See Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827, 831-836, 943 N.E.2d 466 (2011) (return of service evidencing service on defendant out-of-State was properly admitted in c. 209A case). Notably, in concluding that there was no confrontation clause violation, the McEvoy court also rejected the argument, raised here as well, that the government record could not be used to prove notice where notice was "an element of the offense." McEvoy, supra at 316 & n.6, 100 N.E.3d 767. Likewise, here, the use of a nontestimonial government record for purposes of proving notice to the defendant was acceptable.

Finally, the defendant raises a related argument -- that the c. 209A order itself was not valid because he did not receive proper notice and an opportunity to be heard before it issued. It is true that the Commonwealth did not prove that the defendant had received notice prior to the issuance of either the August 25, 2015, or the September 4, 2015, order. The case law establishes, however, that a conviction of violation of a c. 209A order is valid as long as the defendant received actual notice of the order prior to the alleged violation. See Commonwealth v. Delaney, 425 Mass. 587, 591-593, 682 N.E.2d 611 (1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998) (defendant had actual knowledge of order, and opportunity to have order vacated, prior to time of violation). See also Commonwealth v. Melton, 77 Mass. App. Ct. 552, 556, 933 N.E.2d 125 (2010) (actual notice of order and its terms, provided during telephone conversation, was sufficient to support conviction). Here the defendant received actual notice of the order on September 11, 2015, eleven days before he violated it. He had the opportunity to seek to have the order vacated during that time. The defendant's reliance on Commonwealth v. Welch, 58 Mass. App. Ct. 408, 409-410, 790 N.E.2d 718 (2003), is accordingly misplaced, because in that case the defendant did not receive notice of the order at any time before the alleged violation occurred. There was no due process violation on the facts here.

Judgment affirmed.

      Paragraph 3 also required the defendant "(a) to surrender any keys to [the] residence to the [p]olice; (b) not to damage any belongings of [E.C.] or any other occupant; (c) not to shut off or cause to be shut off any utilities or mail delivery to [E.C.]; and (d) not to interfere in any way with [E.C.'s] right to possess that residence, except by appropriate legal proceedings." These additional requirements are not implicated in this case.

      The officer was allowed to testify that the call provided him a description of a man in a plaid shirt, although this was admitted for the sole purpose of explaining why the officer approached the defendant when he arrived at the scene.

      On cross-examination, the officer stated that he believed the defendant was "about [twenty-five] to [thirty] feet" away from the front door. Whether the defendant was twenty to twenty-five feet away, or twenty-five to thirty feet away, is not material.

      In O'Shea, 41 Mass. App. Ct. at 118, 668 N.E.2d 861, we commented that someone charged with violating a G. L. c. 209A order not only must be aware of the order's existence but also must have "clearly and intentionally disobeyed that order in circumstances in which he was able to obey it." The Supreme Judicial Court subsequently abrogated that pronouncement. See Commonwealth v. Delaney, 425 Mass. 587, 597 n.9, 682 N.E.2d 611 (1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998). As that court held, one can violate an order issued pursuant to G. L. c. 209A without specifically intending to do so, because that statute "requires no more knowledge than that the defendant knew of the order." Id. at 596, 682 N.E.2d 611. However, O'Shea otherwise remains good law on the proposition that one generally cannot be convicted for having violated an order merely by being in the vicinity of the property on which the protected residence is located. See Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785, 787 & n.3, 786 N.E.2d 425 (2003) (citing O'Shea post-Delaney ).

      In this case we are construing the c. 209A order, which requires the defendant to "stay away from the plaintiff's residence." The statute, c. 209A, uses the term "remain away." For purposes of construing "away" we perceive no difference between the terms.

      The plaintiff need not be present for a violation to occur. We use the terms "abuse" and "contact" as they are already defined in the order and the case law.

      We recognize that the problem is partially ameliorated by the existence of the other provisions in abuse prevention orders prohibiting a defendant from abusing, contacting, or coming within a specific distance of the protected party. However, as a practical matter, enforcing those provisions typically requires the testimony of domestic abuse victims, who are often reluctant to face their abusers.

      The standard accordingly is consistent with our holding in O'Shea, that merely being in the "vicinity" of the premises is not sufficient to violate the "stay-away" provision.

      We also reject the defendant's contention that the order was unconstitutionally vague as applied to the facts here, because it did not give him sufficient notice that his conduct was prohibited. The words "stay away" gave sufficiently clear notice that the defendant could not stand immediately outside the property boundary. See Commonwealth v. Coppinger, 86 Mass. App. Ct. 234, 239, 15 N.E.3d 259 (2014) ; Commonwealth v. Forbes, 86 Mass. App. Ct. at 201, 14 N.E.3d 348.

      In McEvoy, 93 Mass. App. Ct. at 316, 100 N.E.3d 767, this court assumed, without deciding, that notice of the license suspension was an element of the offense. In light of the holding in McEvoy, we similarly do not decide whether notice qualifies as an "element" here.

      The defendant argues that an extended c. 209A order is automatically invalid if the defendant did not receive notice of the hearing during the period (usually ten days) between the issuance of the temporary order and the hearing on whether to extend the order. No case so holds.

      There is no merit to the defendant's contention that the Commonwealth failed to prove that he was the same Geoffrey Watson named in the c. 209A order. The testimony of Officer Stephen McKunes had a proper foundation in personal knowledge, and was sufficient to establish that while being booked the defendant himself had provided the information from which his identity could be confirmed -- including his home address. See Commonwealth v. Doe, 8 Mass. App. Ct. 297, 299, 393 N.E.2d 426 (1979).