author: LENK, J.

text:
    COMMONWEALTH v. Cayla S. PLASSE.
    SJC-12486
    Supreme Judicial Court of Massachusetts, Franklin..
    Argued September 6, 2018 Decided January 10, 2019
    Edward Gauthier, Greenfield, for the defendant.
    Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.
    Lisa Newman-Polk, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   LENK, J.

"Few, perhaps no, judicial responsibilities are more difficult than sentencing. The task is usually undertaken by trial judges who seek with diligence and professionalism to take account of the human existence of the offender and the just demands of a wronged society." Commonwealth v. Rodriguez, 461 Mass. 256, 259, 962 N.E.2d 711 (2012), quoting Graham v. Florida, 560 U.S. 48, 77, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). While the exercise of this "quintessential judicial power" is never an easy task, Rodriguez, supra at 266, 962 N.E.2d 711, it is made all the more difficult when the crime and subsequent noncompliance with probation are related to the effects of drug addiction.

The issue here arises from the judge's imposition of a sentence of incarceration following the defendant's repeated addiction-related violations of probation over a period of several years. The defendant requested the sentence in order to participate in a secure residential drug treatment program, but, after several months of serving her sentence, sought release from the alleged unlawful restraint, as well as a new sentencing hearing. She now appeals from the denial of the motion she filed pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001); the defendant contends that the judge erred in considering the rehabilitation program when setting the length of her sentence of incarceration. We conclude that in the circumstances presented, the judge did not abuse his discretion.

1. Background. a. Initial disposition. In August 2013, the defendant stole items valued at more than $250 from a chain department store. A complaint issued approximately one month later charging her with larceny, in violation of G. L. c. 266, § 30 (1), and with using disguises to obstruct execution of the law, in violation of G. L. c. 268, § 34. At a plea colloquy, the defendant admitted to sufficient facts to warrant a finding of guilt with respect to the larceny charge. The judge then continued the matter without a finding for one year, from December 2013 through December 2014. Upon the successful completion of the one-year period of probation, the charge was to be dismissed.

At that time, the defendant was twenty-one years old. The continuance was conditioned on the successful completion of two programs: "Stoplift," an Internet-based program designed to prevent shoplifting recidivism, and a program involving intensive supervision by the probation service known as level three "community corrections." The latter includes office visits, group meetings, and drug and alcohol screenings.

b. Probationary violations. We summarize the course of the probationary violations over the next three years as follows.

In January 2014, one month after the initial continuance was imposed, the probation service filed its first notice of violation. The notice related to the defendant's noncompliance with the requirements of the community corrections program and her failure to pay court-ordered fees. A second notice of violation was filed in March 2014, following a drug screening in which the defendant tested positive for the presence of tetrahydrocannabinol (THC). At a hearing concerning both of these violations, the defendant, represented by counsel, stipulated to the underlying facts. The defendant was found in violation of the terms of probation and reprobated, and the continuance -- as it was initially imposed -- remained in effect.

In April 2014, the defendant reported to the probation service and her drug screen returned a positive result for the presence of THC and cocaine. Approximately one week later, the defendant again tested positive for the presence of THC and cocaine, as well as for amphetamine and morphine. The probation service filed its third and fourth notices of violation. Counsel was appointed, and the defendant was held pending a final violation hearing. At the final violation hearing in May 2014, the judge again found the defendant in violation of the terms of probation. This time, he modified the terms of probation, requiring a substance abuse evaluation, a mental health evaluation, that the defendant remain drug and alcohol free, and that she participate in a residential treatment program. The judge also extended the probationary period until May 2015. The defendant subsequently entered into the specified drug treatment program.

In October 2014, a warrant issued for the defendant's arrest when the probation officer became aware that she had left the court-ordered residential treatment program without authorization. The defendant was brought into court, at which time her drug screening results again were positive. She was found in violation, and was reprobated, without any further modification of the length or terms of probation.

In November 2014, another warrant was issued for the defendant's arrest, due to her failure to report to her probation officer on two occasions. The warrant remained outstanding until she came to court one month later, when she tested positive for the presence of cocaine and THC. Following a hearing in December 2014, the judge found the defendant in violation, reprobated her, and amended the conditions of probation for a second time, to require that the defendant complete a different residential drug treatment program. He also extended the defendant's term of probation until December 2015. The defendant was held in custody for several weeks until a bed became available in that program.

In January 2015, the defendant entered the second residential treatment program and remained there for approximately three months before transitioning to a sober living program. She was expelled from the sober living house shortly thereafter, as a result of using drugs. The defendant failed to report to the probation service as required, and another warrant was issued for her arrest.

At a July 2015 hearing, the judge found the defendant in violation of the terms of her probation. He again modified the terms of probation to require the defendant to reside at a third residential drug treatment program. The defendant entered that program, but later was asked to leave because of drug use. A warrant again issued for the defendant's arrest. She ceased contact with her probation officer, and with the court, for the next thirteen months.

The defendant eventually telephoned her mother, who had been actively coordinating with her probation officer in an attempt to locate the defendant throughout the prior year. The defendant reported to her mother that her drug use had spiraled out of control and that she had "hit rock bottom." In October 2016, police officers located and arrested the defendant.

As of the time of the October 2016 hearing, the defendant had been in violation of the terms of her probation during most of the three years of the repeatedly extended continuance. The probation service requested that the judge vacate the continuance and enter a finding of guilt, revoke the defendant's probation, and sentence her to a term of incarceration of eighteen months. Her probation officer reported that the defendant's family agreed that she was in "great need for treatment," in addition to needing to be held accountable for her crime.

Defense counsel represented that the defendant agreed she was "not a good candidate for probation," and that she needed a more structured environment in which to obtain treatment. Counsel therefore requested that the defendant be sentenced to a term of incarceration of "at least nine months," a period of time that he stated was sufficient for her to be assigned to, and then complete, the structured and intensive treatment program known as "Howard Street."

Noting the defendant's failure to complete several residential treatment programs and his concern that many in her position "don't make it," the judge concluded that the defendant presented one of the rare cases in which all efforts at rehabilitation, other than incarceration, had been unsuccessful. He stated that a sentence of incarceration would be imposed "not to punish [the defendant] but to make sure that she gets through a program and is back out on the street safe and alive." Consequently, the judge revoked the defendant's probation and sentenced her to two years' incarceration in a house of correction for the underlying offense, pursuant to G. L. c. 266, § 30 (1). In calculating the length of the sentence, the judge noted that the defendant would be credited with two months of "time served," took into account the potential "good time" credits that she could earn toward early release, and considered her eligibility for parole after serving one-half of the sentence. In doing so, he appeared to have reasoned that the defendant would serve approximately nine to ten months of the two-year sentence, a period of time adequate to complete the program that the defendant had requested.

Months later, represented by new counsel, the defendant sought release from the alleged unlawful restraint, as well as a new sentencing hearing pursuant to Mass. R. Crim. P. 30. She argued that the judge had erred in considering rehabilitative programming in determining the appropriate length of incarceration. The motion was denied. The defendant appealed, and we transferred the case from the Appeals Court to this court on our own motion.

2. Discussion. a. Standard of review. We review the denial of a motion under Mass. R. Crim. P. 30 for abuse of discretion or error of law. See Commonwealth v. Perez, 477 Mass. 677, 681-682, 80 N.E.3d 967 (2017). See also Commonwealth v. Perez, 480 Mass. 562, 567, 106 N.E.3d 620 (2018). "Under that standard, the issue is whether the judge's decision resulted from ' "a clear error of judgment in weighing" the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives.' " Perez, supra at 682, 80 N.E.3d 967, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014).

b. Probation revocation. When a sentencing judge, after sufficient facts have been admitted, terminates a continuance, revokes probation, and enters a guilty finding, the judge is permitted to impose "a sentence or other disposition as provided by law." See Rule 9(b) of the District/Municipal Court Rules for Probation Violation Proceedings, Massachusetts Rules of Court, at 655 (Thomson Reuters 2018) (noting dispositional options available to judge following violation of conditions associated with continuance). See also Commonwealth v. Villalobos, 437 Mass. 797, 801, 777 N.E.2d 116 (2002) (when defendant admits to sufficient facts for purposes of continuance, violation "may lead to ... an immediate conviction and sentence ... during the continuance period"). When a violation occurs and a defendant's probation is revoked because the defendant has "abused the opportunity" offered to avoid incarceration in the first instance, the defendant is imprisoned not for the violations that prompted revocation of probation, but, rather, "the defendant is essentially being sentenced anew on his [or her] underlying conviction" (citations omitted). See Commonwealth v. Eldred, 480 Mass. 90, 97, 102, 101 N.E.3d 911 (2018).

Here, the defendant does not challenge that a term of incarceration appropriately was imposed, or that the sentence fell within the legal limits prescribed by the statute pursuant to which she had been convicted. Rather, her challenge is to the factors considered by the judge in fashioning that sentence. She contends that, in setting the length of her sentence, the judge abused his discretion when he took into account the time requirements of a rehabilitative program she wished to enter and had urged upon him. We discern no abuse of discretion in these limited circumstances.

c. Sentencing considerations. We have long held that "[a] judge has considerable latitude within the framework of the applicable statute to determine the appropriate individualized sentence." Commonwealth v. Goodwin, 414 Mass. 88, 92, 605 N.E.2d 827 (1993), citing Commonwealth v. Celeste, 358 Mass. 307, 309-310, 264 N.E.2d 683 (1970). "That sentence should reflect the judge's careful assessment of several goals: punishment, deterrence, protection of the public, and rehabilitation." Goodwin, supra. In determining the extent to which a particular sentence will facilitate these goals, a sentencing judge is tasked with weighing "various, often competing, considerations." Rodriguez, 461 Mass. at 259, 962 N.E.2d 711. Those considerations include, among others, the circumstances of the crime, the role of the defendant in the crime, the need for deterrence, the defendant's risk of recidivism, and the extent to which a particular sentence will increase or diminish the risk of recidivism. See id., and cases cited. Thus, in order "to impose a just sentence, a judge requires not only sound judgment" but also information concerning, among other factors, the defendant's "criminal and personal history." See id.

In fashioning an appropriate and individualized sentence that takes account of a defendant's personal history, a judge has discretion to weigh "many factors which would not be relevant at trial," including the defendant's behavior, background, family life, character, history, and employment. See Commonwealth v. Mills, 436 Mass. 387, 399-400, 764 N.E.2d 854 (2002) ; Goodwin, 414 Mass. at 92, 605 N.E.2d 827, citing Celeste, 358 Mass. at 310, 264 N.E.2d 683. See also Commonwealth v. White, 436 Mass. 340, 343, 764 N.E.2d 808 (2002) (judge may consider such factors in assessing defendant's "propensity for rehabilitation"). Taking into account a defendant's substance abuse issues may be part of this calculus. See Commonwealth v. Healy, 452 Mass. 510, 515, 895 N.E.2d 752 (2008) (judge had discretion to consider defendant's alcohol use problem during sentencing). See also Sentencing Commission, Advisory Sentencing Guidelines, at 27 (Nov. 2017) ("[a] just system of punishment" is one that "provides the defendant with treatment for mental, emotional, psychological, or physical conditions, including substance abuse, as needed"). In circumstances in which a defendant specifically requests a judge's consideration of his or her substance abuse issues and related need to complete a rehabilitative program while incarcerated, the judge may take these factors into account. See Lannon v. Commonwealth, 379 Mass. 786, 792-793, 400 N.E.2d 862 (1980) (defendant cannot challenge on appeal proposal that own counsel offered).

A judge's discretion to consider external factors, however, is not unlimited. Indeed, "[i]t is of paramount importance that justice be administered impartially, based solely on relevant criteria for sentencing." See Mills, 436 Mass. at 401, 764 N.E.2d 854. For example, a sentencing judge may not punish a defendant for an untried criminal offense, Commonwealth v. Souza, 390 Mass. 813, 817, 461 N.E.2d 166 (1984) ; rely on inaccurate or misleading information in sentencing, Commonwealth v. LeBlanc, 370 Mass. 217, 221, 346 N.E.2d 874 (1976) ; or punish a defendant to direct a personal message of deterrence to a particular community, Commonwealth v. Howard, 42 Mass. App. Ct. 322, 327-328, 677 N.E.2d 233 (1997).

The judge here expressed no personal or private beliefs regarding the defendant's history that appeared to "interfere with his judicial role and transform it from that of impartial arbiter." Cf. Mills, 436 Mass. at 401, 764 N.E.2d 854. Nor did he make remarks indicating that he was punishing the defendant for conduct "other than that for which the defendant [stood] convicted" (citation omitted). Cf. White, 436 Mass. at 341-342, 764 N.E.2d 808. As part of his sentencing considerations, the judge took into account the defendant's request to participate in a particular rehabilitation program while incarcerated, as well as the actual amount of time that she would be required to serve in order to complete that program. We discern no abuse of discretion in considering those programmatic time constraints, among various other factors, when fashioning her sentence in the circumstances here.

Indeed, after the defendant's failure to make use of the opportunity to avoid incarceration while on probation, the judge sought to maintain an appropriate balance between the defendant's individualized needs and those of the community in which she resides. See Eldred, 480 Mass. at 103, 101 N.E.3d 911. In so doing, he considered permissible factors, such as the defendant's history, behavior, and propensity for rehabilitation while on probation. See, e.g., White, 436 Mass. at 343, 764 N.E.2d 808 ; Commonwealth v. Doucette, 81 Mass. App. Ct. 740, 744, 967 N.E.2d 1136 (2012). Because nothing in our common law precludes a sentencing judge from considering a defendant's amenability to rehabilitative programming in imposing a sentence of incarceration expressly permitted by statute, we cannot conclude that the judge exhibited a "clear error of judgment" such that his decision fell "outside the range of reasonable alternatives" here (citation omitted). See Perez, 477 Mass. at 681-682, 80 N.E.3d 967.

That being said, we emphasize that, while we discern no abuse of discretion in this case, it is because of the unusual context in which the challenged sentencing decision was made. The approach taken here, over a three-year period, consistently embodied the recognition that incarceration is not the preferred means of achieving rehabilitation, at least for those whose minor, nonviolent crimes are related to the effects of substance abuse. See, e.g., Deputy Chief Counsel for the Pub. Defender Div. of the Comm. for Pub. Counsel Servs. v. Acting First Justice of the Lowell Div. of the Dist. Court Dep't, 477 Mass. 178, 179, 74 N.E.3d 1250 (2017) (in drug courts, judge "impose[s] probation to accommodate a need for treatment rather than a sentence of incarceration"); Department of Correction, FY16 Gap Analysis Report, at 3 (Oct. 2017) (noting that forty-one per cent of eligible individuals did not complete or participate in drug and alcohol programming in jails and prisons, and thirty-two per cent had no access to such programming). At the same time, all else had failed; both the defendant's family and the defendant herself acknowledged the need for incarceration; the defendant requested to participate, while incarcerated, in a particular program; and the judge considered that request, along with other factors, when determining the length of her committed sentence. Had the constellation of circumstances been otherwise, so might the result. d. Federal approach. Acknowledging that there is no existing jurisprudence in the Commonwealth that precludes a sentencing judge from considering a defendant's need for rehabilitation in imposing a sentence of incarceration, the defendant urges us to adopt the Federal approach. See Tapia v. United States, 564 U.S. 319, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). In Tapia, the United States Supreme Court relied upon express language in the Federal Sentencing Reform Act that directs a Federal judge, when sentencing, to recognize that "imprisonment is not an appropriate means of promoting correction and rehabilitation." Id. at 326, 131 S.Ct. 2382, citing 18 U.S.C. § 3582(a). In interpreting this provision, the Court held that, although a Federal judge at sentencing may discuss the opportunities for rehabilitation within prison, the judge may not impose or lengthen a term of incarceration solely to ensure that a defendant completes rehabilitative programming. See id. at 332, 131 S.Ct. 2382.

The defendant does not point to, and we are unaware of, any controlling Massachusetts authority that would prohibit a State trial court judge from considering rehabilitation in imposing a term of incarceration explicitly permitted by the language of the criminal statute pursuant to which she was convicted. As discussed, in Massachusetts, "it is a rare sentence, whether or not jail is a part of it, that does not in fact involve ... rehabilitation." Commonwealth v. Power, 420 Mass. 410, 415, 650 N.E.2d 87 (1995), cert. denied, 516 U.S. 1042, 116 S.Ct. 697, 133 L.Ed.2d 655 (1996), quoting United States v. Tolla, 781 F.2d 29, 35 (2d Cir. 1986). Thus, as Tapia concerned the interpretation of a Federal statute for which Massachusetts has no analog, we decline to adopt its approach today.

3. Conclusion. "Trial court judges, particularly judges in the drug courts, stand on the front lines of the opioid epidemic." See Eldred, 480 Mass. at 99, 101 N.E.3d 911. Here, as in Eldred, the defendant's underlying crime is substance abuse related, the probation violations are substance abuse related, and the relapses associated with those violations may themselves be part of the recovery process. See id. Mindful that judges are to steer carefully between Scylla and Charybdis when sentencing such individuals, and that sentencing decisions are bounded by limits, we are of the view that, given all of the circumstances present here, the judge did not exceed those limits.

The order denying the motion for release from unlawful confinement and for a new sentencing hearing is affirmed.

So ordered.

      We acknowledge the amicus brief of the Committee for Public Counsel Services; the American Academy of Addiction Psychiatry; the American Civil Liberties Union of Massachusetts, Inc.; the Association for Behavioral Healthcare; the Center for Prisoner Health and Human Rights; the Center for Public Representation; the Grayken Center for Addiction Medicine at Boston Medical Center; the Massachusetts Association of Criminal Defense Lawyers; the Massachusetts Society of Addiction Medicine; and Prisoners' Legal Services.

      The prosecutor dismissed the charge of obstruction.

      In a disposition of a continuance without a finding, a defendant admits to sufficient facts that the offense occurred as charged, but the judge does not enter a finding of guilt. Instead, the matter is continued to a specific date, whereupon it is dismissed if the imposed conditions have been met. See G. L. c. 278, § 18. If the defendant is found to have violated the conditions imposed in an order of probation, the judge may convert the continuance to a guilty plea and sentence the defendant accordingly. Id. See Commonwealth v. Sebastian S., 444 Mass. 306, 315, 827 N.E.2d 708 (2005).

      Where there is reason to believe that a defendant has violated a condition of probation, a probation officer may initiate probation violation proceedings by filing a "Notice of Probation Violation and Hearing." See Rule 4(b) of the District/Municipal Court Rules for Probation Violation Proceedings, Massachusetts Rules of Court, at 644 (Thomson Reuters 2018). At a preliminary detention hearing, a judge determines whether probable cause exists to believe that the probationer has violated a condition of the probation order, and, if so, whether the probationer should be held in custody pending a final violation hearing. See Rule 5 of the District/Municipal Court Rules for Probation Violation Proceedings, supra at 645-646. At a final violation hearing, the judge determines whether, by a preponderance of the evidence, the defendant violated the terms of probation and, if so, what the appropriate disposition should be. See Rule 8 of the District/Municipal Court Rules for Probation Violation Proceedings, supra at 653.

      The requirement that the defendant remain drug and alcohol free was implicit in the Community Corrections level three program, which includes mandatory drug and alcohol screenings.

      "Howard Street" refers to a secure residential treatment program at a facility in Hampden County run by the sheriff's department. The facility has since moved locations and is now known as the Western Massachusetts Recovery and Wellness Center. It is designed to provide for the custody, care, and treatment of substance abusers.

      The defendant is no longer incarcerated, rendering moot her challenge to the order denying the motion for a new sentence and release from unlawful confinement. See Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103, 725 N.E.2d 552 (2000). Nonetheless, we decide the case because it raises important issues concerning proper sentencing considerations that are likely to recur in similar circumstances, but to evade review. See id.

      To the extent that the defendant also moved for a new sentencing hearing pursuant to Mass. R. Crim. P. 30 (b), the decision to allow such a motion is similarly left "to the sound discretion of the judge." See Commonwealth v. Scott, 467 Mass. 336, 344, 5 N.E.3d 530 (2014).

      The judge gave no indication that he otherwise would have imposed a shorter sentence if it were not for the programmatic time constraints.

      The judge, of course, could only recommend that the defendant be allowed to participate in the Howard Street program; the power and responsibility of implementing a sentence reside with the sheriff's department. See Commonwealth v. Cole, 468 Mass. 294, 302, 10 N.E.3d 1081 (2014). Similarly, parole eligibility and good time credits are not within a judge's purview. It appears that, given the judge's apparent familiarity with the area, the available programs, and the sheriff's practices, there was likely reason for those involved to think his recommendation as to the Howard Street program would carry significant weight.

      As our cases have long made clear, rehabilitation remains an important interest served by sentencing. See, e.g., Commonwealth v. White, 436 Mass. 340, 343, 764 N.E.2d 808 (2002) ; Commonwealth v. Coleman, 390 Mass. 797, 805, 461 N.E.2d 157 (1984).

      By way of example, even if an imposed sentence is within the statutory limits and thus legal, we would not be sanguine about sentencing practices for the same underlying crime if, following the substance-abuse-related revocation of probation, the imposed sentence were harsher than it would have been following the revocation of probation due to other causes. Moreover, when determining the length of a committed sentence, a judge's consideration of the time requirements of a rehabilitation program that the defendant has not voluntarily requested, but that the judge mandates, is a practice fraught with peril and generally best avoided.

      Other State courts similarly have rejected arguments that they adopt the reasoning in Tapia v. United States, 564 U.S. 319, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011), also on the ground that Tapia relies exclusively on the interpretation of Federal law. See, e.g., Knox v. State, 122 A.3d 1289 (Del. 2015) (unpublished); State v. Baker, 153 Idaho 692, 699 n.2, 290 P.3d 1284 (Ct. App. 2012). But see State v. Jepsen, 907 N.W.2d 495, 510 (Iowa 2018) (Zager, J., dissenting) (citing Tapia, in context of double jeopardy challenge, for proposition that imprisonment is inappropriate for rehabilitation as compared to probation).


source: Caselaw Access Project

author: BUDD, J. LOWY, J. (concurring).

license: Public Domain

text:
    William SCIONE v. COMMONWEALTH.
    Commonwealth v. David W. Barnes.
    SJC-12536 SJC-12540
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued September 7, 2018 Decided January 15, 2019
    Steven Van Dyke, Committee for Public Counsel Services (Patrick Levin, Committee for Public Counsel Services, also present) for William Scione.
    Christopher B. Coughlin, Boston, (Alexander C. Conley also present) for David W. Barnes.
    Catherine Langevin Semel & Marina Moriarty, Assistant District Attorneys, for the Commonwealth.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.
   BUDD, J.

Here we are called upon to determine whether G. L. c. 276, § 58A ( § 58A ), the pretrial detention statute, may be applied to David W. Barnes and William Scione, charged with violating G. L. c. 265, § 23A ( § 23A ) (rape of child aggravated by age difference, i.e., statutory rape), and G. L. c. 266, § 102A ( § 102A ) (use of incendiary device), respectively. We conclude that § 23A does not qualify as a predicate offense under § 58A in its current form, and that, depending upon the circumstances, § 102A may (and, in this case, does) so qualify.

1. Statutory scheme of § 58A. Section 58A, which provides for the pretrial detention of certain defendants, "seek[s] systematically to identify those who may present a danger to society and to incapacitate them before that danger may be realized" (citation omitted). Mendonza v. Commonwealth, 423 Mass. 771, 780, 673 N.E.2d 22 (1996). The Commonwealth may move for a dangerousness hearing pursuant to § 58A if a defendant has been charged with one or more predicate offenses as defined under the statute.

G. L. c. 276, § 58A (4).

If an individual has been charged with a predicate offense as defined by § 58A, a hearing may be held to determine whether the individual should be released either on personal recognizance, under particular conditions, or not at all. G. L. c. 276, § 58A (2). A judge may order pretrial detention if he or she finds that the Commonwealth has established by clear and convincing evidence that "no conditions of release will reasonably assure the safety of any other person or the community." G. L. c. 276, § 58A (3).

Predicate offenses under § 58A either are specifically enumerated in the statute or fall within one (or more) of the following categories: (1) those felonies that "ha[ve] as an element of the offense the use, attempted use or threatened use of physical force against the person of another" (force clause); (2) "any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result" (residual clause); or (3) "a misdemeanor or felony involving abuse as defined in [ G. L. c. 209A, § 1 ]" (abuse clause). G. L. c. 276, § 58A (1).

We are tasked with determining whether § 23A and § 102A, neither of which is specifically enumerated in § 58A, fall within one of the other specified categories of offenses identified in the pretrial detention statute.

2. Barnes and § 23A. a. Background. We summarize the facts alleged and procedural history provided in the record of the proceedings against Barnes. After reportedly communicating through social media, the victim and Barnes met at a predetermined location and then proceeded to a hotel, where they engaged in sexual intercourse. The victim later reported to police that Barnes had sexually assaulted her. At the time of the incident, the victim was fifteen years old and Barnes was forty-three years old.

Barnes was charged with, among other things, statutory rape in violation of § 23A, which provides in pertinent part:

"Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under [sixteen] years of age and ... (b ) there exists more than a [ten-]year age difference between the defendant and the victim where the victim is between the ages of [twelve] and [sixteen] years of age ... shall be punished ...."

At arraignment in the District Court, the Commonwealth moved to detain Barnes pursuant to § 58A. Following a dangerousness hearing, the Commonwealth's § 58A motion was allowed and Barnes was ordered held. Barnes appealed to the Superior Court, arguing that (1) § 23A does not qualify as a predicate offense under the force clause of § 58A ; and (2) the residual clause of § 58A is unconstitutionally vague. A Superior Court judge agreed and reversed the District Court's judge's § 58A pretrial detention order. The Commonwealth filed a petition for extraordinary relief in the county court. G. L. c. 211, § 3. A single justice of this court reserved and reported the case for consideration by the full court.

b. The force clause of § 58A. The force clause of § 58A is straightforward: an offense qualifies as a predicate crime pursuant to this clause if "an element of the offense is the use, attempted use or threatened use of physical force against the person of another." G. L. c. 276, § 58A (1). In making this determination, we take a categorical approach, that is, look at the elements of the offense, rather than the facts of or circumstances surrounding the alleged conduct. Commonwealth v. Young, 453 Mass. 707, 711-712, 905 N.E.2d 90 (2009).

The elements of the crime of statutory rape in violation of § 23A are that the defendant (1) had sexual intercourse or unnatural sexual intercourse with (2) a child between twelve and sixteen years of age, and (3) there is more than a ten-year gap between the ages of the defendant and the victim. See G. L. c. 265, § 23A. Compare Commonwealth v. Bernardo B., 453 Mass. 158, 172, 900 N.E.2d 834 (2009) (discussing elements of G. L. c. 265, § 23, "rape and abuse of child"). On its face, § 23A does not have as an element "the use, attempted use or threatened use of force." G. L. c. 276, § 58A (1). See Bernardo B., supra ("Force is not a necessary element of the crime"). The Commonwealth contends that a charge of statutory rape nevertheless qualifies as a predicate offense under the force clause of § 58A because statutory rape contains an inherent element of force and the act of penetration on a child may substitute for the physical force requirement of the force clause.

To support its position, the Commonwealth points to cases in which the defendant is charged with forcible rape pursuant to G. L. c. 265, § 22 ( § 22 ), and the (adult) complainant was unable to give or refuse consent due to being intoxicated or otherwise incapacitated. We have held that there, "the only force required for proof of the crime is 'such force as was necessary to accomplish' the act of intercourse -- that is, only the force necessary to effect penetration." Commonwealth v. Blache, 450 Mass. 583, 589, 880 N.E.2d 736 (2008), quoting Commonwealth v. Burke, 105 Mass. 376, 380 (1870). The Commonwealth reasons that because a child is legally incapable of consenting to sexual intercourse, see Commonwealth v. Wilbur W., 479 Mass. 397, 398-399, 95 N.E.3d 259 (2018), the act of penetration of a child satisfies the element of physical force required by § 58A. This argument is flawed.

Unlike § 23A, § 22 includes as an element the use or threatened use of force. The fact that the element of force in § 22 may be satisfied in some cases by the act of penetration has nothing at all to do with whether § 23A includes the use of force as an element of the crime. The fact that a child is incapable of consenting to sexual intercourse is relevant not to whether there is an element of force in statutory rape, but instead to whether consent is a defense to the crime (it is not).

Importantly, the crime of forcible rape of a child, G. L. c. 265, § 22A, which punishes "[w]hoever has sexual intercourse or unnatural sexual intercourse with a child under [sixteen], and compels such child to submit by force and against his will or compels such child to submit by threat of bodily injury,"

does qualify as a predicate offense under the force clause of § 58A (emphasis added). The fact that the Legislature saw fit to create two separate statutory rape offenses -- one that includes the use of force and one that does not -- further supports our conclusion that § 23A does not contain as an element the use of force.

Because "the use, attempted use or threatened use of physical force" is not an element of § 23A, the statute does not qualify as a predicate offense under the force clause of § 58A.

c. The residual clause of § 58A. The Commonwealth also maintains that § 23A is a predicate offense under the residual clause of § 58A, and that the motion judge erred in concluding that the clause is unconstitutionally vague. We agree with the motion judge.

A statute is unconstitutionally vague when "it lacks ... certainty and definiteness ... so that a [person] of ordinary intelligence [is unable] to ascertain whether any act or omission of his [or hers], as the case may be, will come within the sweep of the statute." Commonwealth v. Slome, 321 Mass. 713, 715, 75 N.E.2d 517 (1947). See Commonwealth v. Reyes, 464 Mass. 245, 249, 982 N.E.2d 504 (2013). See also Sessions v. Dimaya, --- U.S. ----, 138 S.Ct. 1204, 1212, 200 L.Ed.2d 549 (2018) (opinion of Kagan, J.) ( Dimaya ). However, "[t]he degree of vagueness that is permissible under principles of due process varies with the interests involved." Chief of Police of Worcester v. Holden, 470 Mass. 845, 854, 26 N.E.3d 715 (2015) (citation omitted). See Dimaya, supra at 1212 (opinion of Kagan, J.).

The United States Supreme Court declared a similar residual clause, found in 18 U.S.C. § 924(e)(2)(B)(ii) (2012), known as the Armed Career Criminal Act (ACCA), to be unconstitutionally vague. Johnson v. United States, --- U.S. ----, 135 S.Ct. 2551, 2556, 192 L.Ed.2d 569 (2015). The ACCA, which more severely punishes those defendants with three or more previous violent felony convictions, defines "violent felony" to include "any crime punishable by imprisonment for a term exceeding one year ... that ... involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The Court held that the clause violated due process because it left open the question how to estimate the risk of physical injury posed by a crime, as well as how much risk was required for a crime to qualify as a violent felony.

Johnson, supra at 2557-2558. We soon followed suit with respect to the Massachusetts version of the ACCA, G. L. c. 140, § 121, as incorporated in G. L. c. 269, § 10G, which included an almost identical residual clause.

Commonwealth v. Beal, 474 Mass. 341, 350-351, 52 N.E.3d 998 (2016).

More recently, the Supreme Court reviewed the Federal statute defining "crime of violence" ( 18 U.S.C. § 16 ) and struck down its residual clause, which is almost identical to that of § 58A. See Dimaya, 138 S.Ct. at 1211. Compare 18 U.S.C. § 16(b) with G. L. c. 276, § 58A (1). The residual clause of 18 U.S.C. § 16 defines a crime of violence to include any felony "that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16(b).

In Dimaya, the defendant, who was found to be deportable pursuant to the Immigration and Nationality Act after being convicted of a crime of violence as defined by 18 U.S.C. § 16(b), challenged that clause as being unconstitutionally vague. The Court concluded that because "deportation is 'a particularly severe penalty,' " "the most exacting vagueness standard should apply." Dimaya, supra at 1213 (opinion of Kagan, J.). Following the reasoning in Johnson, the Court concluded that, like the residual clause of the ACCA, § 16(b) violates due process "[b]y combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a [crime of violence]." Dimaya, supra at 1214, quoting Johnson, 135 S.Ct. at 2558.

We note that the United States Supreme Court has not opined on the constitutionality of the residual clause found in the Federal pretrial detention statute. , However, we focus here on art. 12 of the Massachusetts Declaration of Rights with regard to § 58A. See, e.g., Commonwealth v. Augustine, 467 Mass. 230, 243-244, 4 N.E.3d 846 (2014). In doing so we note that although pretrial detention is "regulatory in character," Brangan v. Commonwealth, 477 Mass. 691, 702 n.16, 80 N.E.3d 949 (2017), "[t]he right to be free from confinement prior to trial is a protected liberty interest," (citations omitted). Commonwealth v. Torres, 441 Mass. 499, 502 n.4, 806 N.E.2d 895 (2004). We have held other statutes that fail to give notice of conduct to be avoided and provide unfettered discretion to police or the courts to be unconstitutionally vague under due process principles where the defendant's liberty interest is at stake. See Alegata v. Commonwealth, 353 Mass. 287, 294-301, 231 N.E.2d 201 (1967) (striking down G. L. c. 272, § 66, in part, G. L. c. 272, § 63, in part, and G. L. c. 272, § 68, in part, as facially void under due process clause); Revere v. Aucella, 369 Mass. 138, 142-143, 338 N.E.2d 816 (1975), appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U.S. 877, 97 S.Ct. 225, 50 L.Ed.2d 159 (1976) (holding G. L. c. 272, § 16, unconstitutionally vague and overbroad for purpose of imposing criminal liability); Commonwealth v. Kwiatkowski, 418 Mass. 543, 546-547, 637 N.E.2d 854 (1994) (holding G. L. c. 265, § 43 [d ], unconstitutionally vague under due process principles); Commonwealth v. Pagan, 445 Mass. 161, 170-173, 834 N.E.2d 240 (2005) (striking down G. L. c. 275, § 18, in part, as unconstitutionally vague).

Given the Supreme Court's holdings in Johnson and Dimaya, coupled with our vagueness jurisprudence, we conclude that the language in the residual clause of § 58A is unconstitutionally vague under art. 12, and therefore § 23A cannot qualify as a predicate offense pursuant to it.

3. Scione and § 102A. a. Background. We summarize the alleged facts gleaned from the investigative reports, as well as the procedural history provided in the record of the proceedings against Scione, reserving certain details for later discussion. Police responded to a 911 call reporting a fire in the driveway of the victim's residence. Upon extinguishing the fire, officers observed the melted remains of a plastic gasoline container. A police detective described the origin of the fire as a "homemade" improvised explosive device (I.E.D.), which, had it exploded, could have caused "serious harm."

Scione was charged with violating § 102A, which provides in pertinent part:

"Whoever, without lawful authority, ... places an explosive or a destructive or incendiary device or substance with the intent: (i) to cause fear, panic or apprehension in any person; or (ii) to ignite, explode or discharge such explosive or such destructive or incendiary device or substance ... shall be punished ...."

At Scione's arraignment in the District Court, the Commonwealth moved to detain him pursuant to § 58A. Following the dangerousness hearing, the judge allowed the Commonwealth's motion. Scione appealed from the ruling to the Superior Court, challenging (for the first time) the Commonwealth's ability to seek detention under § 58A with an alleged violation of § 102A as the predicate offense. A Superior Court judge denied Scione's appeal, concluding that the charge against him was a lawful predicate under the abuse clause. Subsequently, Scione filed a petition for extraordinary relief in the county court. See G. L. c. 211, § 3. A single justice of this court denied the petition without a hearing, and Scione appealed. The case is now properly before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).

b. The abuse clause of § 58A. Scione argues that the lower court judge erred in concluding that a charge under § 102A qualifies as a predicate offense under the abuse clause, that is, that § 102A is not a "misdemeanor or felony involving abuse." G. L. c. 276, § 58A (1). In particular, he contends that the language and structure of the abuse clause requires a categorical approach, i.e., an inquiry focused only on the statutory elements of the charged offense, rather than the facts underlying the complaint or indictment. See Commonwealth v. Young, 453 Mass. 707, 712, 905 N.E.2d 90 (2009). Scione maintains that because § 102A does not have abuse as an element of the offense, it cannot be a predicate offense that triggers § 58A. In contrast, the Commonwealth argues that the plain language of the abuse clause of § 58A captures all offenses "involving abuse" as defined in G. L. c. 209A, § 1 ( c. 209A, § 1 ), regardless of whether the abuse involved is a statutorily prescribed element of the offense charged. For the reasons that follow, we agree with the Commonwealth.

Whether the abuse clause of § 58A requires a categorical approach depends on what the Legislature meant by the phrase "a misdemeanor or felony involving abuse." See Pyle v. School Comm. of S. Hadley, 423 Mass. 283, 285, 667 N.E.2d 869 (1996) ("Our primary duty is to interpret a statute in accordance with the intent of the Legislature").

As discussed in more detail supra, § 58A specifically states that "abuse" is defined there just as the term is defined in c. 209A, § 1. This does not provide any insight whether a categorical approach to the abuse clause is necessary. The word "involving" is not defined in the statute. "When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.... We derive the words' usual and accepted meaning from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." Commonwealth v. Campbell, 415 Mass. 697, 700, 616 N.E.2d 430 (1993), quoting Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369, 361 N.E.2d 1239 (1977). Webster's Third New International Dictionary 1191 (1993) defines the term "involve" as "to relate closely[,] ... contain, include[,] ... to require as a necessary accompaniment[,] ... to have an effect on[,] concern directly." The term appears to connote both nonexhaustive inclusion with the use of the word "include," and selective exclusivity with the use of the phrase "to require as a necessary accompaniment," depending upon the classification at issue.

Thus, it is unclear whether "involving" in the abuse clause means "limited to," or "including but not limited to." The former meaning would indicate a categorical approach, looking only at the elements of the crime to determine whether a particular offense is one "involving abuse"; the latter meaning would instead require a review of the circumstances surrounding the alleged crime. As we cannot discern the meaning of the clause based on its plain language, we turn to other "well-established principles of statutory construction [to] guide our interpretation." Federal Nat'l Mtge. Ass'n v. Rego, 474 Mass. 329, 334, 50 N.E.3d 419 (2016).

We begin by comparing the abuse clause to the force clause, also in § 58A (1). See Ginther v. Commissioner of Ins., 427 Mass. 319, 324, 693 N.E.2d 153 (1998) (comparing use of language employed within same statute is well-established rule of statutory construction). The force clause permits the Commonwealth to move for the pretrial detention of a defendant charged with "a felony offense that has as an element of the offense the use, attempted use or threatened use of physical force against the person of another" (emphasis added). G. L. c. 276, § 58A (1). Notably, there the Legislature specifically refers to those crimes which have "as an element of the offense" the use of force, but did not do so in the abuse clause. See Commonwealth v. Gagnon, 439 Mass. 826, 833, 792 N.E.2d 119 (2003) ("[w]here the [L]egislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded" [citation omitted] ). See also Commonwealth v. Caracciola, 409 Mass. 648, 653 n.8, 569 N.E.2d 774 (1991).

Additionally, we note that there is a fundamental difference between the concepts of "the use of force" and "abuse." The use of force can be, and is, an element of particular crimes. See, e.g., G. L. c. 265, § 22A (rape of child); G. L. c. 265, § 22 (rape) ; G. L. c. 265, § 18C (home invasion); G. L. c. 265, § 19 (unarmed robbery); G. L. c. 265, § 51 (human trafficking -- "forced services").

In contrast, as used in § 58A, abuse is not an element of a crime. "Abuse" is defined in c. 209A, § 1, as

"the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress."

Thus, "abuse" as it is used in § 58A is best described as a characterization of an action or actions, and is itself comprised of elements. We are unaware of any crimes that have as an element "abuse" as defined in c. 209A, § 1.

As the Commonwealth points out, only assault or assault and battery on a household member, in violation of G. L. c. 265, § 13M, likely would satisfy the abuse clause under a categorical approach. The drafters clearly knew how to list specific crimes to be considered as predicate offenses under § 58A, because they did so. See G. L. c. 276, § 58A (1). Had the Legislature intended that only one crime be captured under the abuse clause, there would be no need for the clause at all; instead, the drafters would have included § 13M as one of the specifically enumerated offenses in the section. See DiFiore v. American Airlines, Inc., 454 Mass. 486, 490-491, 910 N.E.2d 889 (2009) ("our respect for the Legislature's considered judgment dictates that we interpret the statute to be sensible, rejecting unreasonable interpretations unless the clear meaning of the language requires such an interpretation").

Finally, applying a noncategorical approach to the abuse clause is well supported by the legislative history of § 58A. See Casseus v. Eastern Bus Co., 478 Mass. 786, 797, 89 N.E.3d 1184 (2018), quoting Commonwealth v. Mogelinski, 466 Mass. 627, 633, 1 N.E.3d 237 (2013) ("A statute's meaning 'must be reasonable and supported by the ... history of the statute' "). In 1994, after the previous version of the pretrial detention statute had been held unconstitutional, the newly proposed bill was presented to the Legislature accompanied by a letter from then Governor William F. Weld explaining its purpose. The Governor wrote in part:

"Government has no more important obligation than protecting the safety of its citizens, and yet dangerous arrestees who clearly pose an ongoing danger to our community too often are released out on bail or personal recognizance. Innocent lives, particularly the lives of women victimized by domestic violence continue to be at risk. This legislation is critical to our ability to reduce, if not eliminate, that risk."

1994 House Doc. No. 4305. In addition, when the Senate was considering the proposed legislation, at least one senator raised the issue of combatting domestic violence. Thus, interpreting the abuse clause so as to allow for the examination of the underlying facts giving rise to the charge in question, rather than in a strictly categorical way, is in keeping with the Legislature's intent.

For the foregoing reasons, we conclude that a judge may look beyond the elements of a crime to the surrounding circumstances of the alleged offense to determine whether it is "misdemeanor or felony involving abuse," and thus a predicate offense under § 58A.

c. Application of the abuse clause to the circumstances of the alleged violation of § 102A. Scione argues that, even taking a noncategorical approach, the circumstances surrounding his alleged violation of § 102A do not qualify under the abuse clause of § 58A, that is, the alleged facts did not involve abuse as defined by c. 209A, § 1. More specifically, he argues that the record does not support a finding that he is a "family or household member[ ]," that he "attempt[ed] to cause ... physical harm" to the victim or that he "plac[ed anyone] in fear of imminent serious physical harm." See G. L. c. 209A, § 1. Reviewing the single justice's order pursuant to G. L. c. 211, § 3, for an abuse of discretion or clear error of law, see Department of Mental Retardation v. Kendrew, 418 Mass. 50, 53, 634 N.E.2d 109 (1994), we find neither.

Pursuant to c. 209A, § 1, a "family or household member[ ]" is defined in pertinent part as

"persons who ... are or have been in a substantive dating or engagement relationship, which shall be adjudged by ... consideration of the following factors: (1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship" (emphasis added).

Here, according to the record, Scione and the victim had dated for approximately four years before the victim ended the relationship in 2012, six years prior to the instant incident. Although the victim had not had physical or verbal contact with Scione for a few years after the relationship ended, over the past six years, members of the victim's family had seen Scione on numerous occasions walking past their home. Approximately three years ago, he was seen looking into the windows of the home, and during the week preceding the incident, he was observed throwing candy at the house, specifically at the window that used to be that of the victim's bedroom when she and Scione were dating. These facts certainly satisfy the definition of a family or household member as defined by c. 209A, § 1. See, e.g., Brossard v. West Roxbury Div. of the Dist. Court Dep't, 417 Mass. 183, 185, 629 N.E.2d 295 (1994) ("emotional relationship which entailed substantially more than a few casual dates" amounted to "substantive dating relationship").

The record also supports a finding that Scione attempted to cause physical harm or placed the victim in fear of imminent serious physical harm as he placed a homemade I.E.D. at the bottom of the victim's driveway, which, had it exploded, could have caused serious harm. Thus, based on the circumstances in this case, the alleged violation of § 102A qualifies as a predicate offense under the abuse clause of § 58A. We therefore affirm the order of the single justice denying Scione's petition for extraordinary relief.

4. Conclusion. The Superior Court judge's order vacating the District Court judge's § 58A pretrial detention order of Barnes is affirmed. The denial of Scione's petition for extraordinary relief is affirmed.

So ordered.

LOWY, J. (concurring).

I agree with the court that, in the circumstances of this case, use of an incendiary device in violation of G. L. c. 266, § 102A, qualifies as a predicate offense under the pretrial detention statute, G. L. c. 276, § 58A ( § 58A ). I also agree that rape aggravated by age difference, G. L. c. 265, § 23A ( § 23A ), does not qualify as a predicate offense under § 58A. I write separately because such a counterintuitive result requires further discussion and consideration by the Legislature.

As discussed in the court's opinion, the pretrial detention statute does not list rape aggravated by age difference as a qualifying offense. Given today's result, the Legislature may choose to consider this omission with alacrity. There is an apparent explanation for why aggravated rape is not enumerated as a qualifying offense -- it presumably falls within the residual clause of § 58A. Our decision today makes clear, however, that the residual clause is unconstitutionally vague. Finally, the force clause of § 58A applies only when an element of the offense is "the use, attempted use or threatened use of physical force against the person of another." G. L. c. 276, § 58A (1). Aggravated rape, as it applies to this indictment, means that there was intercourse between individuals more than ten years apart in age. Indeed, the point of criminalizing this serious and disturbing conduct is that such conduct is deeply offensive, regardless of whether force is used. The Commonwealth's argument that § 23A falls within the force clause is to ignore the egregiousness of a violation of § 23A even when no force is involved.

Although our conclusion with respect to aggravated rape is unfortunate, it is correct under the law as currently written. Therefore, I concur in the judgments.

      We note that on September 6, 2018, Governor Charles D. Baker sent the Legislature a proposed bill titled, "An Act to protect the Commonwealth from dangerous persons." If enacted, this legislation would, among other things, amend G. L. c. 276, § 58A (§ 58A ), to include G. L. c. 265, § 23A (§ 23A ), as an enumerated offense. See Letter from Governor Charles D. Baker to Senate and House of Representatives, at 6-7 (Sept. 6, 2018), https://www.mass.gov/files/documents/2018/09/06/Dangerous% 20Persons% 20Letter% 20and% 20Bill% 20Text.pdf [https://perma.cc/6UG8-5B62].

      The enumerated offenses in § 58A (1) include the following: "the crimes of burglary and arson whether or not a person has been placed at risk thereof, ... a violation of an order pursuant to [G. L. c. 208, § 18, 34B, or 34C ; G. L. c. 209, § 32 ; G. L. c. 209A, § 3, 4, or 5 ; or G. L. c. 209C, § 15 or 20 ], ... arrested and charged with a violation of [G. L. c. 269, § 10 (a ), (c ), or (m ) ; G. L. c. 266, § 112 ; or G. L. c. 272, §§ 77, 94 ], or arrested and charged with a violation of [G. L. c. 269, § 10G ]."

      Barnes was also charged with violating G. L. c. 265, § 26D (enticement of child for prostitution); G. L. c. 265, § 13L (reckless endangerment of child); and G. L. c. 272, § 53A (sexual conduct for fee). These charges are not at issue in this appeal.

      After the Commonwealth filed its G. L. c. 211, § 3, petition, a grand jury indicted Barnes for violating § 23A, based on the same facts. Barnes was arraigned in the Superior Court, during which time the Commonwealth filed a new § 58A motion but requested that no action be taken at arraignment due to the instant appeal before this court; instead, bail was set with conditions. The Commonwealth moved to dismiss the charge in the District Court. That motion was allowed. Although the Commonwealth's c. 211, § 3, petition pertained to Barnes's District Court charge, which has since been dismissed, review by this court to determine whether a charge of violating § 23A qualifies as a predicate offense under § 58A remains appropriate, as Barnes is still subject to potential § 58A pretrial detainment in the Superior Court based on the same charge.

      General Laws c. 265, § 22 (§ 22 ), states in pertinent part: "Whoever has sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury ... shall be punished ...."

      Thus, for example, "the regulation of business and economic activity is subject to a vagueness test less strict than that applied to most criminal behavior." Brookline v. Commissioner of the Dep't of Envtl. Quality Eng'g, 387 Mass. 372, 378, 439 N.E.2d 792 (1982), S.C., 398 Mass. 404, 497 N.E.2d 9 (1986).

      The residual clause of G. L. c. 269, § 10G, provides that a "violent crime" includes "any crime punishable by imprisonment for a term exceeding one year ... that ... involves conduct that presents a serious risk of physical injury to another." G. L. c. 140, § 121, as incorporated in G. L. c. 269, § 10G.

      The only difference between the residual clause of 18 U.S.C. § 16(b) and that of § 58A (1) is that, unlike the latter, the former includes in its definition "physical force against the person or property of another" (emphasis added).

      The Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), requires the deportation of any alien convicted of an "aggravated felony," which includes under the statute a crime of violence as defined by 18 U.S.C. § 16.

      The federal pretrial detention statute, 18 U.S.C. § 3142(f)(1)(A), subjects defendants to a pretrial detention hearing when his or her case involves "a crime of violence." A "crime of violence" is defined in 18 U.S.C. § 3156(a)(4)(B) as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

      At least one Federal District Court has addressed the issue, however. The United States District Court for the Western District of New York concluded that the Federal pretrial detention statute is not unconstitutionally vague. See United States vs. Watkins, U.S. Dist. Ct., No. 18-CR-131, 2018 WL 4922135 (W.D.N.Y. Oct. 9, 2018).

      The length of a pretrial detention period may, in some cases, last years. See e.g., Brangan, 477 Mass. at 693, 80 N.E.3d 949.

      To the extent that any of these cases refer to the Fourteenth Amendment to the United States Constitution when concluding that the statute at issue violates due process, the statute also violates due process principles in art. 12 of the Massachusetts Declaration of Rights.

      Analogizing to Beckles v. United States, --- U.S. ----, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), the Commonwealth contends that § 58A should not be subject to a rigorous vagueness analysis because the statute only triggers the Commonwealth's right to move for a dangerousness hearing and does not define a criminal offense or "fix" a permissible sentence. See id. at 892. This argument is misplaced.
      In Beckles, the Supreme Court held that the Federal sentencing guidelines could not be challenged for vagueness because they are merely advisory and thus did not create any arbitrary mechanisms of enforcement. See id. Section 58A (1) automatically authorizes the Commonwealth to move for a dangerousness hearing if the charged offense fits within any of the categories of the provision, including the residual clause. As a defendant who is subject to § 58A hearing faces the possibility of pretrial detention, his or her liberty is plainly at stake. See Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) ("Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action"); Josh J. v. Commonwealth, 478 Mass. 716, 720-721, 89 N.E.3d 1123 (2018) ; Paquette v. Commonwealth, 440 Mass. 121, 124, 131, 795 N.E.2d 521 (2003), cert. denied, 540 U.S. 1150, 124 S.Ct. 1153, 157 L.Ed.2d 1044 (2004). See generally United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (facial challenge to Bail Reform Act, which subjects defendants to pretrial detention, must pass scrutiny under due process clause).

      Similar to Barnes's case, after Scione filed his c. 211, § 3, petition, a grand jury indicted him for violating § 102A based on the same facts, and the Commonwealth moved to dismiss the case in the District Court. The Commonwealth filed a new § 58A motion in the Superior Court, where a judge found that abuse was alleged in connection with the charge, and ordered Scione held. Thus, as with Barnes's case, although the c. 211, § 3, petition pertained to the now-dismissed District Court charge, review by this court to determine whether the charge of violating § 102A qualifies as a predicate offense under § 58A remains appropriate.

      Scione's reliance upon Commonwealth v. Young, 453 Mass. 707, 905 N.E.2d 90 (2009), to support the argument that the abuse clause requires a categorical approach to determine whether a felony is a predicate offense under § 58A is unavailing. In that case, where we held that unlawful possession of a firearm is not a predicate offense under § 58A, we concluded that "§ 58A requires a categorical approach to determining whether a felony is a predicate offense, independent of the particular facts giving rise to a complaint or indictment." Id. at 712, 716, 905 N.E.2d 90. However, this conclusion referred to the force and residual clauses of § 58A, not its abuse clause. Id. at 711-712, 905 N.E.2d 90. Parenthetically, we note that the Legislature has since amended § 58A to include unlawful possession of a firearm as an enumerated offense. See G. L. c. 276, § 58A (1).

      We concluded that certain provisions of G. L. c. 276, § 58, as amended through St. 1992, c. 201, §§ 3-4, the predecessor to § 58A, had insufficient procedural protections. See Aime v. Commonwealth, 414 Mass. 667, 682, 611 N.E.2d 204 (1993).

      In highlighting the importance of the bill, then Senator Cheryl Jacques stated during a Senate session on June 30, 1994: "One of the biggest fights on [the Senate's] hands is curbing domestic abuse." State House News Service (Senate Sess.), June 30, 1994, at 1 (considering bail reform and "release on bail of certain persons" in 1994 House Doc. No. 4305).

      Scione also argues that § 102A does not qualify as a predicate for pretrial detention under the residual clause of § 58A and that the clause is unconstitutionally vague. Based on our conclusion that § 102A is a predicate offense in these circumstances pursuant to the abuse clause of § 58A (and because we conclude in part 2.c, supra, that the residual clause is unconstitutional), we need not reach these arguments.

      Indeed, there is pending legislation to this effect. See 2018 House Doc. No. 4903.


author: BLAKE, J.

text:
    G.B. v. C.A.
    No. 17-P-924
    Appeals Court of Massachusetts, Norfolk..
    Argued May 3, 2018 Decided November 1, 2018
    Syrie D. Fried, Boston, for the defendant.
    Present: Sullivan, Blake, & Englander, JJ.
   BLAKE, J.

Following a three-day evidentiary hearing, a judge of the District Court extended an abuse prevention order, which had been issued ex parte, for a period of one year. The defendant appeals, claiming that the evidence was insufficient to issue the G. L. c. 209A order (209A order) and that the doctrine of res judicata precludes entry of the order. We affirm.

1. Chapter 209A proceedings. a. December 4, 2015, complaint. We summarize the facts as the judge may have found them. Compare Aguilar v. Hernandez-Mendez, 66 Mass. App. Ct. 367, 367-368 & n.1, 848 N.E.2d 779 (2006). The parties were involved in a dating relationship for close to three years. Their relationship ended on December 2, 2015. The following day, December 3, the defendant, a Boston police officer, appeared at the plaintiff's workplace. A struggle ensued when he attempted to return ceramic flowers to the plaintiff, which he had taken from her home after having given them to her as a gift about a year earlier. The incident was captured by the plaintiff's workplace security cameras, from two different angles. The video equipment did not record sound.

The videotape recordings show that the plaintiff threw the flowers in the trash, and the defendant, who had moved behind the service counter, attempted to, and finally did, retrieve them. The plaintiff lunged at the defendant, pointing long fingernails toward his face, and a struggle ensued. Some of the struggle appears on the recording, showing the plaintiff attempting to take the flowers back, and the defendant keeping them away from her. The parties then went off camera for a period of time. The plaintiff eventually landed on the ground, injuring her face and lip. The recording did not capture how she landed there or how she was injured. The parties then came into the range of the camera and became visible on the recording. As the plaintiff attempted to call the police, the defendant tried to get the cellular telephone (cell phone) away from her; he boxed her in to a corner of the store. The plaintiff was initially unsuccessful in calling the police; the defendant disconnected and muted her cell phone. The defendant admitted that he had done so, contending that he wanted to talk to the plaintiff about the situation because "it might not be good for [her]." As a result of the 911 hang-up call, a 911 operator called back and the defendant answered the plaintiff's cell phone. The defendant then left the store and walked across the street to the police station. Officers arrived on the scene and spoke to him at length. They then came in the store, and the recording was played for them. Initially, they did not speak to the plaintiff; she spoke Spanish and none of the officers spoke Spanish. Eventually, a Spanish-speaking officer arrived and assisted in interviewing the plaintiff. The plaintiff was transported to a hospital, treated, and released.

The following day, December 4, 2015, both parties appeared at the West Roxbury Division of the Boston Municipal Court, each seeking a 209A order against the other. The judge requested that the video recording of the incident be brought to the court. After viewing the video, the judge denied both 209A requests.

Sergeant Detective John Hamilton, a member of the Boston police department domestic violence unit, was assigned to this case. Following his investigation, Hamilton determined that the plaintiff was the aggressor. As a result, he sought a criminal complaint against her for assault and battery on a family member, with a hearing date of February 2, 2016. The defendant was not charged with any offense. The matter was also referred to the police department's internal affairs division because it was a domestic violence incident involving a Boston police officer.

b. January 15, 2016, complaint. Approximately six weeks later, on January 15, 2016, the plaintiff returned to the West Roxbury court house and filed another complaint seeking a 209A order. In her affidavit, the plaintiff alleged that on December 9, 2015, the defendant followed her in his motor vehicle. She stated that she was sitting in the passenger seat of a motor vehicle when the defendant pulled up next to her and looked at her with "anger in his face." When she grabbed her phone to call 911, the defendant drove away. She further alleged that, on January 2, 2016, the defendant solicited a friend from Spain to call her and "threaten [her] to not go to court" on February 2, 2016. The plaintiff averred that the defendant was intimidating her and that she did not feel safe. A different judge denied her request for a 209A order.

c. Clerk magistrate hearing. On February 2, 2016, the parties appeared before a clerk magistrate for a hearing on the criminal complaint application against the plaintiff stemming from the December 3, 2015, altercation. After the hearing, and with both parties' assent, the clerk magistrate took no action. She told the parties that she would hold the application "in abeyance" for sixty days and that, if there were no further incidents, the complaint would be dismissed. She also told the parties to stay away from one another. The application was ultimately dismissed with the following notations: "no probable cause found," "request of complainant," and "failure to prosecute."

d. May 12, 2016, complaint. On May 12, 2016, the plaintiff returned to the West Roxbury court house and filed another complaint seeking a 209A order. The complaint itself stated that the defendant carried a gun, and listed December 3 and 9, 2015, as prior abuse dates. In her affidavit, which directed the plaintiff to "[d]escribe in detail the most recent incidents of abuse," she alleged that the defendant was "not complying with the order of not contacting me." Specifically, she alleged that the defendant drove by her work; that, on May 7, 2016, he had contacted her on an Internet application called "WhatsApp," and that he "went to Housing to try to tell lies." She also stated that the defendant was following her from her children's school and that internal affairs was investigating him. The plaintiff's request for a 209A order was continued for a two-party hearing on May 19, 2016, at which time both parties appeared. A third judge denied the requested order.

e. June 30, 2016, complaint. On June 30, 2016, the plaintiff returned for a fourth time to the West Roxbury court house seeking a 209A order. Because the plaintiff had moved to a location outside of the West Roxbury jurisdiction, she was referred to the Dedham District Court. There, she applied for a 209A order, which was granted after an ex parte hearing. The extension of this order is the subject of the present appeal. In the June 30 complaint, the plaintiff recounted the December 3, 2015, altercation, indicating that the defendant grabbed her, struck her in the face, pushed her, and slammed her against the ground. She also claimed that two different judges on two different dates ordered the defendant to stay away from her, not to drive by her job, and not to contact her in any way, and that he had violated those orders on five separate dates. She stated that she is "tired of being afraid and always looking over [her] shoulders." The judge entered an ex parte 209A order and scheduled the matter for a further hearing. A different judge presided over a three-day evidentiary hearing and extended the 209A order for one year, to July 14, 2017. This appeal followed.

2. Sufficiency of the evidence of abuse. We review the issuance of a 209A order "for an abuse of discretion or other error of law." E.C.O. v. Compton, 464 Mass. 558, 562, 984 N.E.2d 787 (2013). "[A] judge's discretionary decision constitutes an abuse of discretion where [the reviewing court] conclude[s] the judge made a clear error of judgment in weighing the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014). A plaintiff seeking the extension of an abuse prevention order must prove "by a preponderance of the evidence ... that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm." MacDonald v. Caruso, 467 Mass. 382, 386, 5 N.E.3d 831 (2014). See Iamele v. Asselin, 444 Mass. 734, 736-737, 831 N.E.2d 324 (2005). "In reviewing the judge's decision to [allow] the plaintiff's request for an extension of her protective order, we will not substitute our judgment for that of the trier of fact. We do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts" (quotation omitted). Id. at 741, 831 N.E.2d 324.

The defendant argues that the plaintiff failed to prove, by a preponderance of the evidence, that she suffered abuse. He focuses his claim on the fact that the only "new" evidence presented by the plaintiff in support of the 209A request was an incident where the defendant drove by the plaintiff's workplace. While we might agree that that incident, in isolation, would be insufficient for the issuance of a 209A order, this does not end the inquiry. Our cases are clear that "[i]n evaluating whether a plaintiff has met her burden, a judge must consider the totality of the circumstances of the parties' relationship." Id. at 740, 831 N.E.2d 324. This is so because "[s]uch consideration furthers the Legislature's purpose to establish a statutory framework to 'preserv[e] ... the fundamental human right to be protected from the devastating impact of family violence.' " Id., quoting Champagne v. Champagne, 429 Mass. 324, 327, 708 N.E.2d 100 (1999). Indeed, in evaluating whether an initial 209A order or its extension should issue, the judge must "examine the words and conduct 'in the context of the entire history of the parties' hostile relationship.' " Vittone v. Clairmont, 64 Mass. App. Ct. 479, 487, 834 N.E.2d 258 (2005), quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 930, 716 N.E.2d 686 (1999).

Here, each party sought to introduce the video recording of the December 3, 2015, incident, as each contended that the recording would vindicate him or her, respectively. In discussing with counsel the evidence that would be offered, the judge stated, "I think I have to hear everything to make a decision." In response, counsel for the plaintiff suggested that the parties stipulate to present evidence from "December 3, 2015 onwards," to which counsel for the defendant responded, "That's fine." The judge's statement and the parties' stipulation is consistent with Iamele and its progeny. The touchstone of an analysis as to whether a plaintiff has met her burden in a 209A proceeding must include a consideration of the totality of the circumstances of the parties' relationship. The judge properly considered the events of December 3, 2015, and the subsequent actions of the defendant in considering the plaintiff's request for an extension of the 209A order.

We agree with the defendant that the video recording shows the plaintiff acting in an aggressive manner, and that the plaintiff's testimony was conflicting at times. However, it was ultimately up to the judge to determine the credibility of the witnesses. He could have believed her version of events, or not. Indeed, he would have been within his discretion in finding that the plaintiff was the initial aggressor in the December, 2015, incident, or that it involved mutual combat. Neither finding, however, would negate the further discretion afforded the judge to consider this incident in the totality of the circumstances surrounding the request for the 209A order at issue in this case.

Both parties testified to their version of what occurred on the video, and what occurred off camera. As to what was not captured on the recordings, the judge heard conflicting evidence. The plaintiff testified that the defendant hit her and threw her to the ground. The defendant testified that while his back was turned, she grabbed him, lost her grip, and fell. Although we review documentary evidence de novo, we review other evidence under the usual standard. See, e.g., Commonwealth v. Hoyt, 461 Mass. 143, 148, 958 N.E.2d 834 (2011) ; Commonwealth v. Bean, 435 Mass. 708, 714 n.15, 761 N.E.2d 501 (2002).

Overall, the judge was in the best position to assess the parties' credibility. Not only did he observe the parties as they testified, but he viewed the events on the recordings, and he heard the testimony of all the witnesses concerning what happened on and off camera, as well as the conduct of each of the parties subsequent to the December, 2015, incident. This conduct includes, but is not limited to, the defendant's efforts to prevent the plaintiff from calling 911, the defendant's repeated intrusions into the plaintiff's day-to-day activities over the course of the next several months, and the utter lack of allegations that the plaintiff attempted to contact the defendant during that time. This evidence is sufficient to support the judge's conclusions. See S.T. v. E.M., 80 Mass. App. Ct. 423, 429, 953 N.E.2d 269 (2011) ("Credibility determinations and an evaluation of the sufficiency of all the evidence are matters for the hearing judge to decide"). See also Adoption of Larry, 434 Mass. 456, 462, 750 N.E.2d 475 (2001) (deferring to judge's assessment of witness credibility).

In considering whether the plaintiff was in reasonable fear, the judge implicitly credited the evidence that the defendant interfered with the plaintiff's efforts to call 911, an action which is tantamount to intimidating a witness. Hamilton testified that the plaintiff attempted to call 911 prior to the defendant making any such call. As a result of this testimony, the following exchange occurred between the judge and Hamilton:

Q.: "And further on did ... [the defendant] ever inform you that he had hung up one of the calls to 911?"
A.: "He did not."
Q.: "Had you known that[,] would that have given rise to the issuance of a criminal complaint against him?"
A.: "I don't know. I, I don't believe it would have."
...
Q.: "Have you ever charged someone with intimidation of a witness when they hang up a phone call?"
A.: "I have not personally, no sir."
Q.: "Wouldn't that give rise out of the statute to intimidation if someone hung up -- "
A.: "I believe it would, sir."

On direct examination the plaintiff was asked, "Do you fear [the defendant]?" to which she responded, "A lot, a lot, a lot, a lot." There was a sufficient basis for the judge to conclude, based on the totality of the circumstances, that the plaintiff's subjective fear of physical harm was objectively reasonable. See Smith v. Jones, 75 Mass. App. Ct. 540, 544-545, 915 N.E.2d 260 (2009). Cf. V.J. v. N.J., 91 Mass. App. Ct. 22, 25, 68 N.E.3d 1195 (2017) (in a civil harassment prevention order proceeding, it is necessary to look at the whole course of the defendant's conduct).

Although the judge did not make findings of fact, in extending the order, he stated, "[A]fter hearing and consideration of all the evidence and the reasonable inferences I've drawn from all the evidence, I find that the plaintiff, [G.B.] has met her burden of proof in this case and I'm extending [the] order against [C.A.] for a period of a year." Indeed, where we are able to discern a reasonable basis for the order in the judge's rulings and order, no specific findings are required. See S.T., 80 Mass. App. Ct. at 429, 953 N.E.2d 269 ;

Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3, 852 N.E.2d 679 (2006) (affirming extension where judge made no oral or written findings, but "[t]he judge's questions during the hearing and her ultimate decision make it clear that she credited [the plaintiff's] version of the evidence and rejected [the defendant's] conflicting testimony"). Contrast Iamele, 444 Mass. at 741, 831 N.E.2d 324 (vacating and remanding where judge found that plaintiff was in fear, but, without further explanation, declined to extend c. 209A order).

3. Collateral estoppel. The defendant next claims that the judge erred in considering the December 3, 2015, incident because in December, 2015, and May, 2016, two different judges had previously determined that the defendant's actions on December 3 did not constitute abuse. He argues that principles of res judicata prevent a reconsideration of the incident that was already litigated in his favor. We view this issue as one of issue preclusion, or collateral estoppel.

The defendant asked the judge to view the video recordings of the December 3 incident and stipulated to the admission of this evidence. The parties agreed below that the entire course of conduct was relevant, see Iamele, supra, and an appeal arguing a different theory of the evidence therefore is unavailing. As the issue of collateral estoppel was not argued below, it is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285, 843 N.E.2d 1070 (2006) ("An issue not raised or argued below may not be argued for the first time on appeal" [quotation omitted] ).

Even if the defense of collateral estoppel were not waived, it is unavailable for a separate reason as well. To consider the applicability of issue preclusion, "we look to the record to see what was actually litigated" in the prior proceedings. Kobrin v. Board of Registration in Med., 444 Mass. 837, 844, 832 N.E.2d 628 (2005). If the doctrine is asserted as a defense, as is the case here, "[t]he guiding principle ... is whether the party against whom it is asserted 'lacked a full and fair opportunity to litigate the issue ....' " Martin v. Ring, 401 Mass. 59, 62, 514 N.E.2d 663 (1987), quoting Fidler v. E.M. Parker Co., 394 Mass. 534, 541, 476 N.E.2d 595 (1985). On this record, we cannot say that the issues in the prior 209A complaints, whether credited by the various judges or not, were identical to those in this case and therefore, actually litigated. See McLaughlin v. City of Lowell, 84 Mass. App. Ct. 45, 56, 992 N.E.2d 1036 (2013), quoting Porio v. Department of Revenue, 80 Mass. App. Ct. 57, 61-62, 951 N.E.2d 714 (2011). This complaint and each complaint and affidavit previously filed by the plaintiff recited both historical and new incidents involving the defendant. See M.B. v. J.B., 86 Mass. App. Ct. 108, 110-111, 13 N.E.3d 1009 (2014). Furthermore, we do not have the prior 209A hearing transcripts, and we are unable to ascertain the basis of those earlier decisions. As a result, issue preclusion is not available to the defendant, and the judge's decision must be upheld for this reason as well. See Day v. Kerkorian, 61 Mass. App. Ct. 804, 809, 814 N.E.2d 745 (2004). Cf. Krapf v. Krapf, 439 Mass. 97, 109, 786 N.E.2d 318 (2003) (rejecting the defendant's claim of res judicata where the "record was not sufficiently developed to enable the court to determine the judge's reasons for dismissing the complaint ... with prejudice").

July 15, 2016, extension order affirmed.

      The plaintiff did not participate in this appeal.

      The plaintiff's workplace is located on a busy street in Boston.

      A Boston police detective noticed a red mark near the plaintiff's eye and some swelling and redness around her mouth.

      The defendant was not assigned to this police station.

      The only transcript in the record on appeal is for the evidentiary hearing held in the Dedham District Court in July, 2016, which resulted in the extension order now on appeal. The defendant has not provided us with any other hearing transcripts.

      At the evidentiary hearing that resulted in the extension order now on appeal, see part 1.e., infra, the defendant acknowledged sending the plaintiff a text message on WhatsApp, but testified that he did so in error. He hung up the call when he realized his mistake and did not leave a message.

      When asked by the judge at the ex parte hearing in Dedham District Court whether her requests for 209A orders had been denied in the West Roxbury Division of the Boston Municipal Court because she did not live within that court's jurisdiction, she answered that the order was denied "because we both agreed not to talk to each other and not to contact each other." This was not accurate.

      As pertinent here, abuse is defined as "attempting to cause or causing physical harm"; [or] "placing another in fear of imminent serious physical harm." G. L. c. 209A, § 1.

      Here, those facts include the defendant's failure to stay away from the plaintiff both before and after the sixty-day window imposed by the clerk magistrate; the internal affairs investigations, which are likely to engender hostility; the parties' demeanor in court; and the likelihood that the parties will encounter one another in the course of their usual activities where the defendant is a Boston police officer, and the plaintiff's workplace is on a main thoroughfare in Boston. See Iamele, 444 Mass. at 741, 831 N.E.2d 324.

      That the plaintiff did not include this in her affidavit is not dispositive. This was a factual and legal conclusion that the judge was permitted to make having viewed the video tape recording and observed the witnesses' testimony. Indeed, victims of domestic violence may disclose details of the abuse they suffered over time or in vague or contradictory terms. See A. Olagunju & C. Reynolds, Domestic Violence, 13 Geo. J. Gender & L. 203, 250 (2012). Moreover, the plaintiff testified in some detail about this incident at the evidentiary hearing.

      Cf. Commonwealth v. Fragata, 480 Mass. 121, 129, 101 N.E.3d 297 (2018) (where defendant did not allow the victim to call 911 and would not let her leave, "the prosecutor could have argued that the defendant attempted or caused physical injury to the victim or intimidated her to prevent her from contacting the police, i.e., with the intent to interfere with a criminal investigation").

      A Boston police incident history form was admitted in evidence. It reflected abandoned calls during the altercation.

      While the record reflects that neither of the parties' December, 2015, c. 209A complaints resulted in stay away orders, the defendant did not provide a transcript of the December 4, 2015, hearing. Nor did he provide a transcript of the May 19, 2016, hearing. See note 5, supra. Accordingly, we are unable to determine the reasons that the judges declined to issue the requested orders. It is the appellant's burden to provide us with a complete record. See Mass. R. A. P. 18 (a), as amended, 425 Mass. 1602 (1997).

      "The term 'res judicata' includes both claim preclusion, also known as true res judicata, and issue preclusion, traditionally known as collateral estoppel." Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 564, 806 N.E.2d 427 (2004). While the defendant frames his argument as claim preclusion, we view it as one of issue preclusion, as he contends that on prior occasions judges determined that he did not abuse the plaintiff on December 3, 2015. "[A] party is precluded from relitigating an issue when: (1) there was a final judgment on the merits in [a] prior adjudication; (2) the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication; (3) the issue in the prior adjudication is identical to the issue in the current litigation; and (4) the issue decided in the prior adjudication was essential to the earlier judgment." McLaughlin v. City of Lowell, 84 Mass. App. Ct. 45, 56, 992 N.E.2d 1036 (2013), quoting Porio v. Department of Revenue, 80 Mass. App. Ct. 57, 61-62, 951 N.E.2d 714 (2011).

      It is, however, clear from the dockets before us that this was the only multi-day hearing involving multiple witnesses. Direct and cross-examination was extensive.

      Cf. Adoption of Frederick, 405 Mass. 1, 5-6, 537 N.E.2d 1208 (1989) (findings of fact in a prior care and protection proceeding should not have preclusive effect; nor should they be dispositive on a subsequent petition to dispense with parental consent to adopt); Adoption of Karla, 46 Mass. App. Ct. 64, 70, 703 N.E.2d 729 (1998), quoting Cennami v. Department of Pub. Welfare, 5 Mass. App. Ct. 403, 408, 363 N.E.2d 539 (1977) ("[i]n any proceeding involving the custody of a child concerns of res judicata must inevitably give way to an overriding concern for the welfare of the child").