source: Caselaw Access Project

author: SACKS, J.

license: Public Domain

text:
    COMMERCIAL WHARF EAST CONDOMINIUM ASSOCIATION v. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
    No. 17-P-754
    Appeals Court of Massachusetts, Suffolk..
    Argued March 6, 2018. Decided June 21, 2018.
    Seth Schofield, Assistant Attorney General, for the defendant.
    John MacAulay Allen (William A. Zucker, Boston, also present) for the plaintiff.
    Present: Green, C.J., Sacks, & Shin, JJ.
   SACKS, J.

This appeal presents the question whether a court conducting judicial review under G. L. c. 30A, § 14, of an agency's adjudicatory decision may issue an order of remand to the agency under § 14(6) that reverses various agency evidentiary and discovery rulings-rulings that would ordinarily be reviewed, along with the remainder of the agency's decision, under § 14(7). Here, a Superior Court judge issued such an order and corresponding judgment, and the agency appealed. We conclude that the appeal is properly before us and that the judge erred in acting under § 14(6) ; the challenge to the agency's rulings should instead have been resolved under § 14(7). We also conclude that instead of entering a judgment, the judge should have retained jurisdiction. We therefore vacate the order and judgment and remand to the Superior Court for further proceedings.

Background. The plaintiff Commercial Wharf East Condominium Association (CWECA) is an association of owners of condominiums located at the landward end of Boston's Commercial Wharf, but seaward of the historic low water mark, in an area constituting "Commonwealth tidelands" under G. L. c. 91, § 1. The defendant Department of Environmental Protection (department) is charged with administering c. 91, the Waterways Act, which "generally is viewed as an encapsulation of the Commonwealth's public trust authority and obligations" regarding tidelands. Arno v. Commonwealth, 457 Mass. 434, 454, 931 N.E.2d 1 (2010), quoting from Fafard v. Conservation Commn. of Barnstable, 432 Mass. 194, 200 n.11, 733 N.E.2d 66 (2000).

1. Determination of applicability. In 2011, an abutting property owner filed with the department a "request for a determination of applicability," seeking a ruling that a portion of CWECA's property was being used for nonwater-dependent purposes (parking and vehicular access) and that such uses, not being authorized by statute, were impermissible unless CWECA obtained a license under c. 91. In 2012, the department's waterways regulation program issued a positive determination of applicability, concluding that the property at issue was subject to c. 91 and that its current nonwater-dependent uses were unauthorized.

2. Administrative appeal. a. Motion for summary decision. CWECA filed an administrative appeal of the determination and requested an adjudicatory hearing. CWECA filed a prehearing statement that listed no disputes of fact requiring resolution, but only legal issues. CWECA identified the issues as whether its current use of the area in question was authorized either by statute, by an existing c. 91 license, or by correspondence in the 1970s between one of CWECA's predecessors in interest and the Department of Public Works (DPW), which had administered c. 91 until 1975. See St. 1975, c. 706, §§ 123, 312.

After a prehearing conference, the hearing officer determined that "[t]he issues appear to be amenable to resolution by motion for summary decision." In December, 2012, CWECA filed such a motion, seeking to overturn the positive determination of applicability. The department's waterways regulation program and the abutter opposed the motion, and the abutter asked that the positive determination be upheld.

In 2013, the hearing officer issued a recommended decision concluding that there were no genuine issues of material fact and that as a matter of law the positive determination should be upheld. See 310 Code Mass. Regs. § 1.01(11)(f) (2004) ("Summary decision, when appropriate, may be made against the moving party"). Of particular note, the hearing officer ruled that a 1964 statute relied upon by CWECA had not extinguished public trust rights in the Commercial Wharf area, as any legislation doing so must be explicit; that absent such legislation, the department's c. 91 licensing process provided the mechanism for protecting public trust rights in tidelands; and that correspondence of the type cited by CWECA could not satisfy c. 91.

b. Motion to reopen proceeding and take discovery. While the recommended decision was awaiting final action by a deputy commissioner of the department (the commissioner having recused himself), CWECA filed a "motion to reopen proceeding and take discovery." The motion argued that the recommended decision had revealed disputes of fact whether the DPW had authorized the property uses in question "through license or correspondence"

in the 1970s. CWECA sought to take discovery from the department and others to explore the existence of such documents.

In November, 2014, the hearing officer denied CWECA's motion, on three grounds. First, the hearing officer ruled that the motion was procedurally improper, because the recommended decision had ordered the parties not to move to reargue any part of that decision now that it was before the deputy commissioner for final action.

Second, although a department regulation allowed for a motion to reopen a hearing to submit "new evidence," the hearing officer ruled that CWECA had failed to show that "the evidence to be introduced was not reasonably available for presentation at the hearing," 310 Code Mass. Regs. § 1.01(14)(e) (2004), nor had CWECA previously asserted that any material facts were in dispute.

Third, the hearing officer ruled that the evidence that CWECA hoped to discover was legally immaterial. To the extent that CWECA hoped to discover a c. 91 license from the 1970s authorizing the disputed uses, not only had CWECA failed to find any evidence of such a license in the department's publicly-accessible licensing files, but, by law, any c. 91 license not recorded by the licensee at the registry of deeds within a specified time after issuance (formerly one year, now sixty days) would be void. See G. L. c. 91, § 18. To the extent that CWECA hoped to discover correspondence approving the disputed uses, the existence of such correspondence was "purely speculative," and in any event such correspondence could not authorize a particular use of tidelands. Only an explicit statute or a c. 91 license could do so.

c. Final department action. At the same time as the hearing officer denied CWECA's motion to reopen, the department's deputy commissioner adopted the recommended decision as the department's final decision. CWECA's motion for reconsideration was denied.

3. Superior Court proceedings. CWECA then filed in the Superior Court a complaint for judicial review, under G. L. c. 30A, § 14, of the department's decision.

After the department filed the record of administrative proceedings, see § 14(4), CWECA filed what it styled a "motion for leave to present additional evidence," seeking to reopen the department hearing to "take discovery that was wrongfully denied CWECA." As authority for the court to issue such an order, CWECA cited G. L. c. 30A, § 14(6), which required it to show "that the additional evidence is material to the issues in the case, and that there was good reason for failure to present it in the proceeding before the agency." See note 1, supra.

Over the department's opposition, the judge granted CWECA's motion. The judge ruled that a 1972 statute, when read together with the 1964 statute relied upon by CWECA, "might" have implicitly dispensed with the need for CWECA's predecessor in interest to obtain a c. 91 license for the disputed uses. The judge thus implicitly rejected-on a basis that CWECA had not argued to the department-the final decision's conclusion that, because no statute explicitly authorized those disputed uses, c. 91 required CWECA to obtain a license.

The judge further ruled that evidence on implementation of the 1964 and 1972 statutes was "material," and that the department's denial of CWECA's request for discovery-which the department had based in part on its conclusion that the materials CWECA sought were not material-constituted "good reason" for CWECA's failure to present such evidence to the department. The judge thus implicitly concluded that the department's reasons for denying CWECA's request were not good reasons. The judge did not mention any deference due to the department's view of the various statutes bearing on materiality or to the department's procedural rulings. He ordered the case remanded to the department for CWECA to conduct discovery.

A judgment of remand then entered. The department moved for reconsideration and to vacate the judgment, arguing that the remand order was erroneous and that, even if the judge declined to overturn it, he should in any event vacate the judgment and retain jurisdiction over the case, as § 14(6) assertedly required. The judge denied the motion, and this appeal followed.

Discussion. 1. Appellate jurisdiction. At the outset we consider and reject CWECA's argument that the order remanding the case, being interlocutory in character, was not appealable by the department.

We conclude that although the order was interlocutory, the department's appeal "fall[s] within the so called Cliff House exception" and is therefore proper. Wrentham v. West Wrentham Village, LLC, 451 Mass. 511, 515, 887 N.E.2d 210 (2008) ( West Wrentham Village ), citing Cliff House Nursing Home, Inc. v. Rate Setting Commn., 378 Mass. 189, 390 N.E.2d 723 (1979).

"Typically a judge's remand order to an agency is not subject to appeal. However, the Cliff House exception to this rule allows an 'administrative agency [to] appeal[ ] a [judge's] remand order that is final as to the agency.' Thus, where a remand order is final as to the agency to which the matter is remanded by a judge, the Cliff House exception allows that agency to seek immediate appellate review because the agency 'cannot logically appeal from its own decision on remand.' "

West Wrentham Village, 451 Mass. at 515-516, 887 N.E.2d 210 (citations omitted).

Under Cliff House, remand orders under § 14(7) have been held final as to, and thus appealable by, the agency, even though they did not compel a particular result on the merits, but merely required taking additional evidence, see J.C. Hillary's v. Massachusetts Commn. Against Discrimination, 27 Mass. App. Ct. 204, 206-207 & n.4, 536 N.E.2d 1104 (1989), or related solely to what the reviewing Superior Court viewed as an agency procedural or evidentiary error. See Kelly v. Civil Serv. Commn., 427 Mass. 75, 76 n.4, 691 N.E.2d 557 (1998) (remand to reconsider without reliance on erroneously admitted evidence); Lincoln v. Personnel Administrator of the Dept. of Personnel Admin., 432 Mass. 208, 210-211, 733 N.E.2d 76 (2000) (remand to follow different procedure);

Chief Justice for Admin. & Mgmt. of the Trial Court v. Massachusetts Commn. Against Discrimination, 439 Mass. 729, 730 n.5, 734, 791 N.E.2d 316 (2003) (remand for additional findings). These Supreme Judicial Court decisions, all cited in West Wrentham Village, 451 Mass. at 515, 887 N.E.2d 210, show that it is not a prerequisite to the application of Cliff House that a remand order compel a particular result on the merits.

Here, the remand order was final as to the department, and thus immediately appealable, because it rejected two department rulings in a manner that the department might otherwise never be able to appeal. The remand order effectively overruled the department's conclusions that CWECA's discovery request was procedurally improper and sought information that was substantively immaterial. Had the department proceeded in accordance with the remand order, there was no assurance that the matter would ever have returned to the Superior Court or led to a judgment from which the department could appeal. The only sure way for the department to obtain review of the remand order was to appeal from it directly, as Cliff House permits.

2. Propriety of action under § 14(6). We now come to the question whether, when an agency has rejected a party's request to consider certain evidence, a judge acting under § 14(6) may allow the party's motion to remand to the agency to consider that same evidence, where doing so would effectively overturn the agency's ruling. We hold that § 14(6) may not be used in this manner; instead, such a remand may be sought under § 14(7), and granted if warranted under the standards of review set forth therein. Section 14(6) is not an alternative means of obtaining review of an agency ruling or decision. Rather, it is a mechanism for supplementing the original agency record, in narrow circumstances, before the court completes its review of the agency's decision under § 14(7).

Section 14(7) authorizes the reviewing court to, among other things, "remand the matter for further proceedings before the agency" if a party's substantial rights have been prejudiced because the agency's decision either violates constitutional provisions, exceeds the agency's statutory authority or jurisdiction, is based upon an error of law or unlawful procedure, is unsupported by substantial evidence, or is arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Importantly,

"[t]he court shall make the foregoing determinations upon consideration of the entire record, or such portions of the record as may be cited by the parties. The court shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it."

G. L. c. 30A, § 14(7). Thus, where an agency denies a party's request to consider (or permit discovery to obtain) certain evidence, based on the agency's view that the request is procedurally improper or that the evidence is legally immaterial, that party remains free to challenge the agency ruling on any of the § 14(7) grounds just mentioned.

Here, for example, CWECA's complaint for judicial review challenged the department's discovery ruling on multiple grounds, including that it violated CWECA's procedural rights, and was premised on legal errors in the department's interpretation of the c. 91 scheme it is charged with enforcing and of other statutes relevant to the public trust in tidelands. CWECA's § 14(6) motion added a claim that the discovery ruling was arbitrary, capricious, and an abuse of discretion. As CWECA's own motion conceded, all of these claims were reviewable under § 14(7).

But the two subsections are not interchangeable alternatives. Section 14(6) is, in a sense, a narrow exception to the rule that "an issue not raised before the [agency] is deemed waived" on judicial review under § 14(7). Vaspourakan, Ltd. v. Alcoholic Bevs. Control Commn., 401 Mass. 347, 354, 516 N.E.2d 1153 (1987). If the party challenging the agency decision has failed to present material evidence to the agency, but can show "good reason" for that failure, then § 14(6) allows a remand so that the agency can take the additional evidence, and supplement its findings or decision if necessary, before the court undertakes its review of the final agency decision. If, on the other hand, the party has attempted to present the evidence, but was prevented from doing so by an agency ruling, the party's remedy is not to seek a remand under § 14(6), but to challenge the agency ruling under § 14(7).

Importantly, § 14(7) relief may be granted only after review of "the entire record" (or those portions cited by the parties), and only after giving "due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." Such judicial deference is required-but apparently was not afforded-in each of the three areas implicated by the department's ruling here.

First, where (as here) the agency's challenged evidentiary ruling is based on its interpretation of the statutes it administers, the reviewing court must be mindful that "[w]hile the 'duty of statutory interpretation is for the courts ... an administrative agency's interpretation of a statute within its charge is accorded weight and deference.... Where the [agency's] statutory interpretation is reasonable ... the court should not supplant [its] judgment' (citations omitted)." Peterborough Oil Co. v. Department of Envtl. Protection, 474 Mass. 443, 449, 50 N.E.3d 827 (2016), quoting from Dowling v. Registrar of Motor Vehicles, 425 Mass. 523, 525, 682 N.E.2d 842 (1997).

Second, "regulation of the administrative discovery process lies within the sound exercise of the hearing officer's discretion, just as regulation of the discovery process in judicial proceedings lies within the sound exercise of judicial discretion." Augis Corp. v. Massachusetts Commn. Against Discrimination, 75 Mass. App. Ct. 398, 404-405, 914 N.E.2d 916 (2009).

Third, where (as here) the evidentiary or discovery ruling is bound up with matters of agency procedure, "agencies have broad discretion over procedural matters before them." Zachs v. Department of Pub. Util., 406 Mass. 217, 227, 547 N.E.2d 28 (1989). A reviewing court should "defer to an agency's procedural rulings," reviewing them only for error of law or abuse of discretion, "in particular when the ruling concerns whether to reopen a proceeding or an administrative record (emphasis added)." Brockton Power Co. v. Energy Facilities Siting Bd., 469 Mass. 215, 219, 13 N.E.3d 955 (2014).

A party challenging an agency evidentiary or discovery ruling cannot evade these deferential § 14(7) standards of review, and thereby disrupt the proper balance of authority between agencies and courts, by bringing its challenge under § 14(6). It is true that § 14(6) requires a showing "to the satisfaction of the court" that the proposed additional evidence is material and that there was good reason for the failure to present it to the agency, and that § 14(6) allows the court, if satisfied, to order the additional evidence taken before the agency "upon such conditions as the court deems proper." But this does not imply that a party may elect, by proceeding under § 14(6) rather than § 14(7), to have the agency's ruling reviewed solely for whether it comports with the court's own views on the agency's governing statutes and internal procedures. To the contrary, it implies that § 14(6) is addressed only to those situations where, for "good reason," the agency has not already been presented with and ruled upon the evidentiary question. Where there is no relevant agency ruling for the court to review under deferential § 14(7) standards, the court's own views necessarily assume heightened importance.

Moreover, where the agency has already ruled on the evidentiary issue, it would make little sense to permit the challenging party to use § 14(6) to bifurcate the judicial review process, by bringing claims of erroneous exclusion of evidence through a motion under § 14(6), while challenging the agency's other claimed errors through the well-established process for judicial review under § 14(7). See Superior Court Standing Order 1-96. All claims of agency error should be reviewed together, based "upon consideration of the entire record" or the portions cited by the parties. G. L. c. 30A, § 14(7). Such plenary consideration tends to maintain the required focus both on the substantive review standards of § 14(7) and on whether "the substantial rights of any party may have been prejudiced" by any agency error that occurred. Ibid. Piecemeal review, examining some issues under § 14(6) and others under § 14(7), would lead to an inefficient use of judicial and agency resources, as well as delay and disruption.

Established standards of appellate review support this conclusion. An appellate court reviewing a Superior Court's ruling under § 14(7) "is conducting an analysis of the same agency record, and there is no reason why the view of the Superior Court should be given any special weight. Both in the Superior Court and in [the appellate] court the scope of review is defined by G. L. c. 30A, § 14." Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Commn., 377 Mass. 897, 903, 389 N.E.2d 389 (1979) (citations omitted). See Heineken U.S.A., Inc. v. Alcoholic Bevs. Control Commn., 62 Mass. App. Ct. 567, 568 n.3, 818 N.E.2d 191 (2004). A judge's action under § 14(6), in contrast, is reviewed for abuse of discretion. Massachusetts Assn. of Minority Law Enforcement Officers v. Abban, 434 Mass. 256, 266, 748 N.E.2d 455 (2001) ; Commonwealth v. Roxbury Charter High Pub. Sch., 69 Mass. App. Ct. 49, 53, 865 N.E.2d 1183 (2007). It would make little sense for a judge's decision either upholding or rejecting a party's challenge to an agency evidentiary ruling to be subject to differing standards of appellate review depending on whether the judge had ruled under § 14(6) or § 14(7). Again, the more logical conclusion is that § 14(6) simply does not authorize such challenges.

Thus we think it no coincidence that, in all but one of the reported decisions concerning motions under § 14(6), there is no indication that the agency had already ruled on whether to accept the additional evidence proffered to the reviewing court. Even the single exception we have identified tends to support our conclusion: a challenge to such an agency ruling should be made and resolved under § 14(7).

3. Retention of jurisdiction under § 14(6). Finally, even if the remand order under § 14(6) had been proper, the judge's declining to retain jurisdiction would still be error. "The procedure for remand delineated in [ § 14(6) ] apparently contemplates the retention of jurisdiction." White v. Director of the Div. of Employment Security, 395 Mass. 635, 639 n.4, 481 N.E.2d 461 (1985). The text of § 14(6) leaves little room for any other view. Superior Court Standing Order 1-96, third par., issued to facilitate the orderly resolution of claims for judicial review under § 14 and similar statutes, has long provided that if the court allows a § 14(6) motion, "all further proceedings shall be stayed until the administrative agency has complied with the provisions of [ § 14(6) ]." A court ordering a § 14(6) remand should, rather than entering a judgment, retain jurisdiction and stay its proceedings during the remand.

Conclusion. It was error to rely on § 14(6) to overturn the department's evidentiary and procedural rulings and remand to the department for the taking of further evidence. Such relief was available, if at all, only under § 14(7). Accordingly, the order and judgment under § 14(6) are vacated, and the case is remanded to the Superior Court for further proceedings.

So ordered.

      Section 14(6) provides in full:
      "If application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material to the issues in the case, and that there was good reason for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper. The agency may modify its findings and decision by reason of such additional evidence and shall file with the reviewing court, to become part of the record, the additional evidence, together with any modified or new findings or decision."

      See 310 Code Mass. Regs. § 1.01(11)(f) (2004). A motion for summary decision "is the administrative equivalent of a motion for summary judgment." Zoning Bd. of Appeals of Amesbury v. Housing Appeals Comm., 457 Mass. 748, 763, 933 N.E.2d 74 (2010).

      CWECA relied upon St. 1964, c. 663, "An Act authorizing the Department of Public Works and the Boston Redevelopment Authority to exercise certain powers in regard to certain tidelands along the Atlantic Avenue and Commercial Street waterfront in the city of Boston."

      CWECA also asserted that, at the prehearing conference two years earlier, it had argued that discovery would be necessary, but that the hearing officer had rejected this argument.

      We express no view on the merits of these grounds, or on the correctness of the positive determination of applicability.

      The judge cited St. 1972, c. 310, which bore the same title as the 1964 statute CWECA relied upon. See note 3, supra.

      We give no weight to the fact that the order was also memorialized in a document labeled a judgment. As CWECA and the department agree, a remand under § 14(6) is interlocutory. Cf. Marlborough Hosp. v. Commissioner of Pub. Welfare, 346 Mass. 737, 738, 196 N.E.2d 199 (1964) ("final decree" remanding matter to agency for further proceedings was interlocutory; "[t]he title 'final decree' did not make the decree of remand final in substance"). For clarity, our discussion will refer to the remand order. We return later to the department's argument that no judgment should have entered.

      CWECA observes that in West Wrentham Village, a remand order was held nonappealable by a local board under Cliff House because the order left the board discretion about the final result. See West Wrentham Village, 451 Mass. at 514, 516, 887 N.E.2d 210.

      Whatever uncertainty there may be about the exact reach of Cliff House, see n. 8 supra, we choose to apply it and reach the merits here, particularly because the issue on appeal-whether § 14(6) may be used to challenge agency rulings reviewable under § 14(7) -is an important one that might otherwise escape appellate review. We do not decide whether a proper § 14(6) order, which as discussed infra the order here was not, would necessarily be appealable by the agency under Cliff House.

      Finally, we reject CWECA's claim that the department is judicially estopped from asserting that the remand order is final as to the department so as to implicate Cliff House. Although the department filed, in addition to this appeal, an unsuccessful petition to a single justice, under G. L. c. 231, § 118, first par., seeking interlocutory review of the remand order, the department's filing stated that it might also be entitled to a full appeal under Cliff House. The department thus has not "use[d] the judicial process in an inconsistent way that courts should not tolerate," so as to warrant applying judicial estoppel. East Cambridge Sav. Bank v. Wheeler, 422 Mass. 621, 623, 664 N.E.2d 446 (1996). See also McMenimen v. Passatempo, 452 Mass. 178, 188, 892 N.E.2d 287 (2008) (party that was unsure whether order was interlocutory, or was appealable as of right, could both petition single justice and file notice of appeal).

      This is no less true in the c. 91 context. See Navy Yard Four Assocs. v. Department of Envtl. Protection, 88 Mass. App. Ct. 213, 221, 37 N.E.3d 46 (2015) (department's interpretations of c. 91 were "reasonable and entitled to deference," citing Goldberg v. Board of Health of Granby, 444 Mass. 627, 633, 830 N.E.2d 207 [2005] ).

      We do not suggest that the court acting under § 14(6) owes any less deference than under § 14(7) to any preexisting agency interpretations of relevant statutes, agency procedural rules or practices, and prior agency rulings that may bear on whether the proposed additional evidence meets § 14(6) standards. We decide simply that § 14(6) applies only where there is no agency ruling in the proceeding under review that addresses the proposed additional evidence at issue.

      But see G. L. c. 30A, § 14(5) ("in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court").

      See Fanion v. Director of Div. of Employment Security, 391 Mass. 848, 850-852, 464 N.E.2d 69 (1984) ; Benmosche v. Board of Registration in Med., 412 Mass. 82, 88, 588 N.E.2d 621 (1992) ; Massachusetts Assn. of Minority Law Enforcement Officers, 434 Mass. at 265-266, 748 N.E.2d 455 ; Doe, Sex Offender Registry Bd. No. 15606 v. Sex Offender Registry Bd., 452 Mass. 784, 795, 897 N.E.2d 992 (2008) ; She Enterprises, Inc. v. State Bldg. Code Appeals Bd., 20 Mass. App. Ct. 271, 272-273, 480 N.E.2d 39 (1985) ; Northeast Metropolitan Regional Vocational Sch. Dist. Sch. Comm. v. Massachusetts Commn. Against Discrimination, 35 Mass. App. Ct. 813, 814-815, 626 N.E.2d 884 (1994) ; Roxbury Charter High Pub. Sch., 69 Mass. App. Ct. at 52-55, 865 N.E.2d 1183. Notably, in the Roxbury Charter High Pub. Sch. case, we held that a new financial statement showing a small surplus was not "material" evidence warranting a § 14(6) remand, "because the hearing officer expressly anticipated that possibility in his decision, and stated his view that such a result would not alter his conclusions concerning the school's prospective financial viability." Id. at 54, 865 N.E.2d 1183.

      See Northeast Metropolitan Regional Vocational Sch. Dist. Sch. Comm. v. Massachusetts Commn. Against Discrimination, 31 Mass. App. Ct. 84, 575 N.E.2d 77 (1991) (Northeast I ), and Northeast Metropolitan Regional Vocational Sch. Dist. Sch. Comm. v. Massachusetts Commn. Against Discrimination, 35 Mass. App. Ct. 813, 626 N.E.2d 884 (1994) (Northeast II ). As explained in Northeast II, the Superior Court, after reviewing the agency's decision under § 14(7), remanded for the consideration of additional evidence. But, for reasons unclear from the record, the propriety of that order was not considered in the original appeal, Northeast I. See Northeast II, 35 Mass. App. Ct. at 815-816, 626 N.E.2d 884. That and other unusual circumstances led to the later consideration of a motion for a remand under § 14(6). Id. at 815-816, 818-819, 626 N.E.2d 884.

      By providing that, after taking additional evidence, "[t]he agency may modify its findings and decision ... and shall file with the reviewing court, to become part of the record, the additional evidence, together with any modified or new findings or decision," § 14(6) plainly envisions further filings and proceedings in the original reviewing court. These would be unnecessarily cumbersome, if not impossible, unless the matter remained pending in that court.

      A "judgment" is "the act of the trial court finally adjudicating the rights of the parties ... (emphasis added)." Mass.R.Civ.P. 54(a), 365 Mass. 820 (1974).


author: SINGH, J.

text:
    ADOPTION OF RAISSA.
    No. 16-P-1747
    Appeals Court of Massachusetts, Suffolk..
    Argued September 19, 2017. Decided June 22, 2018.
    Cara M. Cheyette, for the mother.
    Brian R. Pariser, for Department of Children and Families.
    Andrea Peraner-Sweet (Kate C. Billman-Golemme, also present), Boston, for the father.
    Rizwanul Huda, Jamaica Plain, for the child.
    Present: Vuono, Blake, & Singh, JJ.

      A pseudonym.

   SINGH, J.

As a result of her mother's incarceration, three year old Raissa was left without a guardian, leading the Department of Children and Families (department) to file a care and protection petition. Following a trial in the Juvenile Court, the judge found the mother to be unfit and terminated her parental rights. The mother appeals, claiming that she was denied due process when she was required to proceed to trial without counsel. She also appeals from the denial of her motion for new trial, primarily claiming she received ineffective assistance from the nine attorneys who were successively appointed to represent her. We affirm.

Background. On November 26, 2013, the mother was arrested at the scene of a motor vehicle accident. She was allegedly driving under the influence of alcohol when she struck a woman and her seven year old child; the woman was seriously injured, and the child was killed. The mother was held without bail on criminal charges arising out of the incident. As no one could be located to take immediate custody of Raissa, the department filed a petition for care and protection in the Juvenile Court. Ultimately, Raissa was placed with her father, who obtained permanent custody, and the mother's parental rights were terminated. The mother remained in custody on the criminal matter during the pendency of the Juvenile Court proceedings.

In November, 2013, the judge appointed an attorney to represent the mother. In March of 2014, that attorney moved to withdraw at the request of the mother and indicated that an irretrievable breakdown in communication had occurred. The mother requested that another attorney be appointed to represent her. Over the course of the following year, three additional attorneys were successively appointed to represent the mother. She effectively discharged each of them by requesting each to withdraw from her case.

In February, 2015, the judge appointed a fifth attorney to represent the mother. At a May, 2015, pretrial hearing, the mother refused to enter the court room. In July, 2015, within weeks of the scheduled trial, the fifth attorney moved to withdraw at the direction of the mother. At a hearing on July 1, 2015, the mother initially refused to enter the court room. The attorney cited the mother's refusal to attend court proceedings and her insistence on speaking in Spanish, rather than in English (although they had always communicated in English in the past without any difficulty), as additional grounds for withdrawal. The mother was eventually persuaded to come into the court room on that day, and the judge asked her about her ability to communicate in English. Speaking in English, the mother stated that her first language was Spanish; however, she agreed that she could speak and understand English well. The judge then advised the mother that he was going to appoint a sixth attorney for her, that she had to communicate in English with the new attorney, and that he was going to schedule a new trial date that would give the new attorney sufficient time to prepare.

At the same hearing, the judge heard the mother's complaints about her attorneys. The mother complained that her current attorney would not provide her with copies of certain documents. The judge explained that issues of confidentiality prevented the attorney from doing so. He told the mother that he would not continue the case again and that, if she could not cooperate with the new attorney, she would have to represent herself at trial. He discouraged self-representation in favor of reliance on competent counsel with expertise in the field. He emphasized the important stakes involved, namely the ability of the mother to have custody of her child, and the importance of finality, particularly for Raissa.

On September 30, 2015, the mother's sixth attorney moved to withdraw, citing an irretrievable breakdown in communications with his client. The attorney indicated that the mother had written a letter instructing him to withdraw and then had refused to meet with him when he attempted to visit with her to discuss the matter. The judge allowed the attorney to withdraw. He also ordered a court clinic evaluation (evaluation) of the mother's competency to represent herself, in the event that she intended to do so. In the event that the mother was still seeking successor counsel or at least standby counsel, the judge appointed a seventh attorney to represent the mother. The trial was rescheduled for January 21, 2016. A month before the trial date, however, the seventh attorney also moved to withdraw, indicating that the mother had discharged him.

On January 21, 2016, the mother appeared for the court hearing, representing herself (with her seventh attorney present as standby counsel) and speaking through a Spanish language interpreter. The mother complained that the seventh attorney had not worked on the case as she had requested. She asked the judge to appoint another attorney, to give her the assistance of a Spanish language interpreter, and to allow her to complete the evaluation. The judge arranged for the evaluation, continued the trial, and appointed an eighth attorney to represent the mother, emphasizing that the trial must take place on the next scheduled date.

On March 30, 2016, the next scheduled trial date, the eighth attorney moved to withdraw at the mother's request. The attorney cited an irretrievable breakdown in communication as well as ethical issues with continued representation. The judge allowed the attorney to withdraw.

The judge then considered the mother's request for a Spanish language interpreter. After finding that the mother did not need the services of an interpreter due to her exhibited proficiency in English, both in her communications with the judge and her attorneys, the judge then excused the interpreter, who had been present in the court room. The judge asked the mother whether there was any reason that the trial should not go forward as planned. After the mother failed to answer the judge's repeated questions, he noted that the mother was "sitting there and is not responding in any way." Finding that the mother had engaged in dilatory tactics to delay trial, the judge ordered the trial to proceed. He appointed a new attorney to act as standby counsel to assist the mother in representing herself at trial. After a recess called to allow the mother to confer, standby counsel reported that the mother spoke only in Spanish, and that they could not communicate.

Trial commenced. The first witness was the family preservation program director at the Massachusetts Correctional Institution in Framingham (MCI-Framingham), where the mother was being held. She testified that her conversations with the mother had been in English and that she had observed the mother communicating with other MCI-Framingham staff members in English. The department called additional witnesses and submitted documents in evidence. When given the opportunity to cross-examine each witness, the mother spoke only in Spanish. After the department rested, the judge asked the mother whether she wanted to testify or present witnesses, but she responded only in Spanish. The mother did submit documents with the assistance of standby counsel. The trial concluded and the judge later issued a notice of decision determining that the mother was unfit and terminating her parental rights. The father was determined to be fit, and permanent custody of Raissa was awarded to him.

Discussion. 1. Waiver of right to counsel. "An indigent parent in a G. L. c. 210, § 3, proceeding has a constitutional right to counsel. Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 2-5 [393 N.E.2d 406] (1979)." Adoption of William, 38 Mass. App. Ct. 661, 663, 651 N.E.2d 849 (1995). Because the "loss of a child may be as onerous a penalty as the deprivation of the parents' freedom," Custody of a Minor (No. 1), 377 Mass. 876, 884, 389 N.E.2d 68 (1979), courts have looked to the criminal law in deciding issues of individual rights in care and protection cases, including the right to counsel. See Adoption of William, supra. As in a criminal proceeding, however, a parent may waive the right to counsel either explicitly, see id. at 664, 651 N.E.2d 849, or, as here, through conduct. See Commonwealth v. Means, 454 Mass. 81, 89-92, 907 N.E.2d 646 (2009). See also Commonwealth v. Babb, 416 Mass. 732, 735, 625 N.E.2d 544 (1994) (defendant's refusal to proceed with appointed counsel without good cause constitutes abandonment).

Waiver by conduct may occur where a parent engages in misconduct after having been warned by the judge that such behavior will result in the loss of the right to counsel. See Commonwealth v. Gibson, 474 Mass. 726, 741, 54 N.E.3d 458 (2016). "The key to waiver by conduct is misconduct occurring after an express warning has been given to the [parent] about the [parent's] behavior and the consequences of proceeding without counsel" (emphasis in original). Means, 454 Mass. at 91, 907 N.E.2d 646. With "substantial deference" to the trial judge's factual findings related to the loss of the right to counsel, we review the judge's determination of waiver of counsel de novo. Id. at 88, 907 N.E.2d 646.

Here, the judge found that the mother either fired or failed to communicate with each of the eight attorneys appointed to her, which resulted in their need to withdraw. After the appointment and withdrawal of five attorneys, the judge conducted a colloquy with the mother, warning her that she would have to cooperate with her sixth attorney because she would not be appointed another one, and she would consequently have to proceed pro se. The judge detailed the difficulties with self-representation and emphasized the important stakes involved. Despite the warning, the mother was appointed two additional attorneys, whom she also discharged. Finding the mother to have engaged in the same behavior which the judge had previously warned would result in the loss of counsel, the judge concluded that the mother had waived the right to counsel through her conduct and proceeded to trial. On appeal, the mother first claims that the judge erred in finding that she fired her lawyers. She points out that she never filed a single motion seeking a change in counsel; instead, the attorneys made the motions (which were supported by their affidavits). However, seven out of eight of the attorneys averred in their submissions that they moved to withdraw at the direction of the mother. The judge was entitled to credit these affidavits. See Adoption of Paula, 420 Mass. 716, 730, 651 N.E.2d 1222 (1995) (judge's findings with clear record support accepted on appeal). See also Means, 454 Mass. at 93 n.19, 907 N.E.2d 646 ("Where trouble in an attorney-client relationship extends through multiple counsel, it is less likely that the disquiet is due to the particular attorney-client relationship, and more likely that the difficulty is due to the client's intransigence or misconduct").

The mother next contends that the colloquy with the judge on July 1, 2015, was "too hypothetical and stale" to suffice as adequate warning of what would happen at trial on March 30, 2016, if she persisted in her behavior. She also contends that the judge failed to describe with adequate specificity the type of behavior that would result in the loss of appointed counsel. The record does not support this assertion. The judge's colloquy with the mother clearly focused on the number of attorneys who had been appointed and had withdrawn due to an irretrievable breakdown in communication.

In reviewing the adequacy of the warning, we also consider the judge's findings that the mother had prior experience with court proceedings, including the paternity action pertaining to the child (see note 3, supra ), restraining order proceedings, and various criminal matters. She also had a college degree and was described as "very bright and articulate." See Commonwealth v. Appleby, 389 Mass. 359, 368, 450 N.E.2d 1070, cert. denied, 464 U.S. 941, 104 S.Ct. 357, 78 L.Ed.2d 320 (1983) (background, experience, and conduct of litigant and circumstances of case may be considered in waiver analysis). The warning was adequate, given the mother's particular circumstances. See Commonwealth v. Pamplona, 58 Mass. App. Ct. 239, 242, 789 N.E.2d 160 (2003). Thus, the colloquy was sufficient to warn the mother that any further decision to discharge counsel without good cause would be considered problematic misconduct and that if she thwarted another counsel's efforts to represent her, she would face the consequence of representing herself.

Finally, the mother contends that her conduct did not justify denying her counsel. She points out that there was no indication that she was violent or threatening to anyone. "The acts leading to waiver by conduct need not be violent, but they must be highly disruptive of orderly or safe proceedings." Means, 454 Mass. at 91, 907 N.E.2d 646. Repeated changes in counsel delay proceedings because of the need for each new attorney to become familiar with the client and the case; consequently, they interfere with orderly proceedings. See Appleby, 389 Mass. at 366-368, 450 N.E.2d 1070 (motion for new counsel employed as delay tactic); Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 237, 929 N.E.2d 344 (2010) ("most common problem accompanying a request for a change of counsel is the need for a continuance of the trial").

When faced with this situation, it is within the trial judge's broad discretion to take reasonable measures to keep the proceedings moving forward, even if the result is to leave the defendant, or in this case the parent, without counsel. When taking such action, "[t]he judge must weigh the constitutional protections of a [parent] against the interest of orderly trial administration." Commonwealth v. Kenney, 437 Mass. 141, 150, 769 N.E.2d 1231 (2002). See Commonwealth v. Pena, 462 Mass. 183, 192-195, 967 N.E.2d 603 (2012) (judge did not violate probationer's right to counsel when he required him to proceed pro se with standby counsel in interest of judicial efficiency, where probationer "refused" services of succession of court-appointed counsel and probationer thereafter was "purposefully ... trying to delay" proceedings).

In cases involving the termination or curtailment of a parent's rights, there is an additional, competing consideration, beyond the mother's right to counsel-the rights of the child. "[R]ecognition of important parental rights does not change the 'crucial fact' that the focus of proceedings that terminate or curtail parental rights should be the best interest of the child." Adoption of Olivia, 53 Mass. App. Ct. 670, 677, 761 N.E.2d 536 (2002). See Custody of Two Minors, 396 Mass. 610, 617, 487 N.E.2d 1358 (1986) (children's right to stable and safe environment equally as important as parent's interest in fair proceedings).

It follows that "[n]o cases of any kind have a greater claim for expedition at all stages than those involving care and custody of children." Custody of a Minor, 389 Mass. 755, 764 n.2, 452 N.E.2d 483 (1983). See Care & Protection of Quinn, 54 Mass. App. Ct. 117, 122, 763 N.E.2d 573 (2002) (judge did not abuse discretion in declining father's request to continue care and protection trial where "[o]ther interests, specifically the paramount interests of the children involved, argued against delay"). There was no error.

2. Motion for new trial. Following entry of the decree terminating the mother's parental rights, the mother filed a pro se motion for new trial, claiming that (a) she received ineffective assistance of counsel, (b) the evidence was insufficient to sustain the judge's decision, and (c) there were manifest errors at trial, depriving her of due process.

After a hearing, at which the mother represented herself (with the assistance of standby counsel), the judge denied the motion. We review the denial of a motion for new trial for an abuse of discretion. See Adoption of Marc, 49 Mass. App. Ct. 798, 801, 732 N.E.2d 934 (2000) (review of denial of posttrial motion for abuse of discretion).

a. Ineffective assistance of counsel. "Ineffective assistance of counsel contentions in care and protection proceedings are assessed by determining 'whether the "behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer" and, if so, ... "whether [counsel's conduct] has likely deprived the defendant of an otherwise available, substantial ground of defence." ' Care & Protection of Stephen, 401 Mass. 144, 149 [514 N.E.2d 1087] (1987), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 [315 N.E.2d 878] (1974)."

Adoption of Mary, 414 Mass. 705, 712-713, 610 N.E.2d 898 (1993).

In her motion for new trial, the mother set out a litany of complaints against her lawyers, primarily revolving around their failure to take action to challenge the father's paternity and parental fitness. On appeal, the mother argues that "the lack of representation at the paternity trial created a record that could be, and was, weaponized against her." Given that the lawyers did not represent her in the paternity action and that the Probate and Family Court's adjudication of paternity could not be challenged in the Juvenile Court, the lawyers were not deficient in declining to pursue these requests.

As to issues of the father's fitness, the mother raised her concerns with the department, which investigated them and found no support for them. To the extent that the concerns involved criminal allegations, they were further raised with law enforcement authorities, which also investigated and found no support for them. Despite her claims about the father's alleged shortcomings, the mother failed to establish that better work on the part of trial counsel would have yielded anything material, either in her attempt to undermine the father's position or in defense of her own fitness to parent. There was no abuse of discretion or error of law in the denial of the mother's motion for new trial on this ground.

b. Clear and convincing evidence. A judge may only terminate parental rights if he determines, first, that the parent is unfit, and second, that termination would be in the best interests of the child. See Adoption of Nancy, 443 Mass. 512, 514-515, 822 N.E.2d 1179 (2005). We review the judge's findings with substantial deference, recognizing the judge's discretion to evaluate witness credibility and the evidence. Id. at 515, 822 N.E.2d 1179. Subsidiary findings must be proved by a preponderance of the evidence, and will not be disturbed unless clearly erroneous. Ibid. The critical finding of unfitness must be proved by clear and convincing evidence.

Ibid. We review to discern any abuse of discretion or clear error of law on the part of the trial judge. See Adoption of Ilona, 459 Mass. 53, 59, 944 N.E.2d 115 (2011).

The judge determined that the mother was unfit due to unaddressed mental health and alcohol abuse issues, which placed Raissa in danger and ultimately left her without a guardian. He found that the mother failed to cooperate with the department in any way, even revoking permission for representatives of the department to visit her while she was in custody so that they could discuss a plan for reunification. He also found that the mother demonstrated a vacillation of feeling toward the child and placed her own needs above that of the child. By contrast, the judge found that Raissa had developed a strong, nurturing bond with the father and was thriving in his care. The judge further found that the animosity the mother had demonstrated toward the father, including denying his paternity on the child's birth certificate, precluded any possibility that the mother and father would be able to coparent the child. These findings were supported by the record.

c. Manifest errors at trial. On appeal, the mother alleges that the judge erred in denying her motion for new trial on the basis that the trial was infected with structural error, resulting from the denial of counsel. In her motion for new trial, the mother accused the various attorneys of lying to the judge in representing that she had demanded them to withdraw. She claims that the attorneys withdrew because they were unwilling to do the work requested of them. The judge considered these claims and provided his reasoning in rejecting them. Given our disposition of the mother's claim of denial of counsel, supra, we need not address this issue any further, other than to note that the judge was well within his discretion in rejecting the mother's contentions.

Decree affirmed.

Order denying motion for new trial affirmed.

      At the time of the March, 2016, trial in Juvenile Court, the mother had been indicted for manslaughter, motor vehicle homicide, operating a motor vehicle while under the influence causing serious bodily injury, leaving the scene of an accident involving property damage, and assault and battery by means of a dangerous weapon.

      At the time the care and protection petition was filed, Raissa's biological father, who did not reside in the United States, was seeking a judgment establishing his paternity. Over the mother's objection, he was adjudicated the father of Raissa by the Probate and Family Court in September, 2014, and then afforded full party status in the ongoing care and protection proceeding. After a period of transition from foster care, Raissa was placed with her father (who had relocated to Massachusetts) in February, 2015.

      Of these four attorneys, three indicated that the mother had explicitly requested them to withdraw, while one stated that she was unable to repair the relationship after the mother had expressed her belief that there was a serious breakdown in communication between them.

      In an effort to coax the mother into attendance, the judge appointed a guardian ad litem (GAL) for the mother and asked him to speak with the mother. After speaking with the GAL, the mother agreed to come into the court room and speak with the judge on the condition that no other party or their counsel would be present. All parties consented to this procedure. The judge found that the mother's "responses and questions" in English were "perfectly formed, unaccented[, and] colloquial."

      The judge had previously appointed the seventh attorney as the GAL for the mother. See note 5, supra.

      Since the mother stated that she intended to proceed at trial with a lawyer, the judge changed the focus of the previously ordered evaluation from an assessment of her competency to represent herself at trial to an assessment of her psychological functioning relating to parental fitness. On appeal, the mother claims that the judge abused his discretion in changing the nature of the evaluation in the circumstances. As the mother herself acknowledges, however, the completed evaluation concluded that the mother did not suffer from any kind of mental illness or impairment. There was no abuse of discretion in the judge's handling of the evaluation.

      In her brief, the mother assails the judge's dismissal of the interpreter as evidencing "insensitivity," but makes no distinct legal argument relating to the denial of a request for an interpreter. See Commonwealth v. Vargas, 475 Mass. 338, 355-356, 57 N.E.3d 920 (2016) (party claiming right to interpreter has burden of proving entitlement). In view of the mother's exhibited proficiency in English, there was no abuse of discretion or error in the judge's determination that the mother was not entitled to an interpreter. See G. L. c. 221C, §§ 1 -2 ("non-English speaker" entitled to interpreter).

      The mother contends that the serial withdrawal of counsel violated rules of professional responsibility. Once the mother discharged counsel, it was appropriate for the attorneys to seek to withdraw. See Mass.R.Prof.C. 1.16(a)(3), as appearing in 471 Mass. 1396 (2015).

      It is preferable, if possible, to give, or repeat, the warning close to the time of trial. We recognize that this was an unusual and protracted situation. Here, the judge displayed extraordinary patience in appointing additional attorneys to represent the mother after he had warned her that continued failure to cooperate with counsel would result in her proceeding without counsel.

      Notwithstanding the successive discharge and appointment of counsel, we agree with the mother that some of the delay was attributable to the fact that the paternity proceedings were ongoing for part of the time in question.

      On appeal, the mother raises additional issues not raised below, which we briefly address, although we need not do so. See Adoption of Larry, 434 Mass. 456, 470, 750 N.E.2d 475 (2001) (issues raised for first time on appeal not preserved for appellate review). The admission of the G. L. c. 119, §§ 51A and 51B, reports from one year before the petition, filed "to set the stage," was not error. See Custody of Michel, 28 Mass. App. Ct. 260, 267, 549 N.E.2d 440 (1990). In any event, there was other competent evidence, from a variety of sources, of the mother's alcohol-related issues.
      We also note that there was no impropriety in the judge reviewing the transcript of the paternity trial, offered by the father, to help assess the mother's English language fluency.

      The mother's decision to block department representatives from visiting her resulted in her inability to have visits with the child. Instead of simply cooperating with the department, the mother attempted to have the foster parent arrange visits without the knowledge of the department. When this plan did not succeed, the mother refused to reverse course. The result was that the mother had not seen the child for more than two years by the time of trial.

      In her motion for new trial, the mother made some additional arguments regarding the evidence but has not pressed them on appeal. We do not address them here. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).


author: SHIN, J.

text:
    COMMONWEALTH v. Katherine L. RYAN.
    No. 17-P-642
    Appeals Court of Massachusetts, Middlesex..
    Argued March 1, 2018 Decided June 28, 2018
    Cory S. Arter, New Bedford, for the defendant.
    Lindsay Russell, Assistant District Attorney, for the Commonwealth.
    Present: Green, C.J., Sacks, & Shin, JJ.
   SHIN, J.

A jury convicted the defendant of assault and battery causing bodily injury on a person sixty years of age or older, in violation of G. L. c. 265, § 13K(b ), and larceny of property with a value exceeding $250 from a person sixty years of age or older, in violation of G. L. c. 266, § 30(5). On appeal she argues that the Commonwealth failed to prove that the victim suffered a "bodily injury" within the meaning of G. L. c. 265, § 13K(b ), that her larceny conviction cannot stand because the Commonwealth failed to disprove her claim of honest yet mistaken belief, that the prosecutor misstated the evidence in his closing argument, and that her trial counsel was ineffective. Construing the term "bodily injury," defined in G. L. c. 265, § 13K(a ), as an injury that considerably or significantly compromises the usual functioning of any part of a victim's body, we conclude that the evidence was sufficient to support the defendant's conviction under § 13K(b ). As we also reject the defendant's remaining arguments, we affirm.

Background. We summarize the evidence and the reasonable inferences therefrom in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). The victim was born in 1936 and met the defendant in 2007. Their relationship started as a romantic one but evolved into "a friendship type thing." Throughout the course of their relationship, the defendant often stayed at the victim's home, sometimes up to a week at a time.

From November of 2013 to January of 2015, the victim noticed that there were unauthorized withdrawals and other transactions on each of his monthly debit card statements. In total, the unauthorized charges amounted to several thousand dollars. The victim had not given the defendant permission to use his card during this period and questioned her multiple times about the charges, telling her that he "was getting behind on his bills." Each time, the defendant admitted using the card but said that she did so only after checking the account balance to ensure that enough funds were available.

On December 12, 2014, while at the defendant's apartment, the victim again questioned her about the money missing from his account. As the victim was preparing to leave, the defendant "blindsided" him and hit him from behind with a "tremendous ...

blow," causing him to fall to the hardwood floor. The victim "was in great pain" and felt "a burning sensation in the lower back and ... hip area." He spent two to three hours at the hospital, where he was diagnosed with an elbow abrasion and hip contusion and was prescribed pain medication. Although hospital staff wanted him to use a walker, the victim declined because he wanted to stay as "mobile as [he] possibly could."

In mid-to late December of 2014, the victim's neighbor observed that he "seemed to be deteriorating as far as walking"; he "was limping a lot," "seemed to be in a lot of pain," and "would take ... about [fifteen] minutes to get up [a twenty-foot] driveway." According to the neighbor, the victim did not exhibit these symptoms during the first half of the month. An officer investigating the incident in late December of 2014 likewise observed that the victim "was very slow, had a limp, [and] looked like he was injured." Ultimately, it took several weeks before the victim's pain subsided and he started regaining mobility on his injured side.

Discussion. 1. "Bodily injury." General Laws c. 265, § 13K, proscribes assault and battery on an elderly person or a person with a disability and sets out three levels of penalties based on the severity of the bodily injury sustained. See G. L. c. 265, § 13K (a 1/2) (assault and battery); G. L. c. 265, § 13K(b ) (assault and battery causing "bodily injury"); G. L. c. 265, § 13K(c ) (assault and battery causing "serious bodily injury"). The relevant provision here, § 13K(b ), inserted by St. 1995, c. 297, § 4, provides that "[w]hoever commits an assault and battery upon an elder or person with a disability and by such assault and battery causes bodily injury shall be punished." "Bodily injury" is defined as a "substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin." G. L. c. 265, § 13K(a ), inserted by St. 1995, c. 297, § 4.

At issue is the degree of severity required for an injury to constitute a "substantial impairment of the physical condition" within the meaning of §§ 13K(a ) and (b ). In construing this phrase, we look first to the statute's plain language and will 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 from Sullivan v. Brookline, 435 Mass. 353, 360, 758 N.E.2d 110 (2001). As a general matter, "[w]ords and phrases shall be construed according to the common and approved usage of the language." Scott, 464 Mass. at 358, 982 N.E.2d 1166, quoting from Opinion of the Justices, 313 Mass. 779, 781-782, 47 N.E.2d 260 (1943). "[T]echnical terms," however, "should be read in a manner that is consistent with [their technical] meaning." Ibid.

In Scott the Supreme Judicial Court, interpreting "impairment" as used in G. L. c. 265, § 13A(b )(i), concluded that the word "draws its meaning from the medical context, where definitions emphasize an injury's impact on the structure of a part of the victim's anatomy and its ability to serve its usual role in the body." Scott, 464 Mass. at 358, 982 N.E.2d 1166. We likewise conclude that "impairment" in § 13K(a ) derives from the medical context, as we presume that the Legislature intended the word to have a consistent meaning throughout the statutory sections criminalizing assault and battery. See Commonwealth v. Wynton W., 459 Mass. 745, 747, 947 N.E.2d 561 (2011), quoting from Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 188-189, 248 N.E.2d 500 (1969) ("Where the Legislature uses the same words in several sections which concern the same subject matter, the words 'must be presumed to have been used with the same meaning in each section' "). Thus, drawing from the definition in Scott, we construe "impairment of the physical condition" to mean damage to any body part that "compromise[s] its ability to perform its function in the victim's body." Scott, 464 Mass. at 359, 982 N.E.2d 1166.

In determining what degree of impairment is required, we are guided by the neighboring word "substantial." See Commonwealth v. Magnus M., 461 Mass. 459, 462, 961 N.E.2d 581 (2012), quoting from Commonwealth v. Brooks, 366 Mass. 423, 428, 319 N.E.2d 901 (1974) ("We ... interpret 'words in a statute ... in light of the other words surrounding them' "). We give "substantial" its usual and accepted meaning, which is "considerable in quantity" or "significantly great." Merriam-Webster's Collegiate Dictionary 1245 (11th ed. 2005). A "substantial impairment of the physical condition"

therefore occurs where an injury considerably or significantly compromises the usual functioning of any part of the victim's body.

Contrary to the defendant's assertion, the statute does not require the Commonwealth to prove that the victim suffered one of the enumerated examples of "bodily injury," such as a burn or fracture. The enumeration is illustrative, see Scott, 464 Mass. at 359, 982 N.E.2d 1166, but plainly nonexclusive, as shown by the preceding phrase, "including but not limited to." G. L. c. 265, § 13K(a ). In trying to evade this plain language, the defendant relies on Commonwealth v. Chapman, 433 Mass. 481, 744 N.E.2d 14 (2001), in particular, on its statement that G. L. c. 265, § 13J, "defines the bodily injuries the Legislature intended to be punishable under the statute, i.e., burns, fractures, injuries to internal organs, [and] perilous physical conditions." Chapman, 433 Mass. at 484, 744 N.E.2d 14. The defendant suggests that the court's use of "i.e." means that it determined the enumerated examples to be exclusive. We do not believe, however, that the court intended for "including,"

which precedes the enumeration in § 13J(a ), to have no meaning. Rather, the court's statement is best read in light of the last item it listed, "perilous physical conditions," which is a general term that does not limit the statutory definition to any specific type of injury. Indeed, the court went on to conclude that the victim's injury, asphyxiation, constituted a "substantial impairment of the physical condition" without analyzing whether it fell within one of the enumerated examples. Ibid.

We also reject the defendant's suggestion that the degree of impairment required for a conviction under § 13K(b ) is comparable to what is required by Scott. Again, Scott concerned a conviction of assault and battery resulting in "serious bodily injury." 464 Mass. at 358, 982 N.E.2d 1166. As § 13K(c ) provides for enhanced penalties for assault and battery on an elder causing "serious bodily injury," it is plain that an impairment of some lesser gravity will qualify as a "bodily injury" under § 13K(b ).

At the same time, we reject the Commonwealth's position that any injury qualifies as a "bodily injury" so long as it is more than merely "transient and trifling." In the case on which the Commonwealth relies, Commonwealth v. Burno, 396 Mass. 622, 487 N.E.2d 1366 (1986), the defendant was convicted of assault and battery by means of a dangerous weapon under a theory of reckless conduct. Id. at 625, 487 N.E.2d 1366. Proof of injury is relevant under that theory because the reckless act plus actual physical injury are deemed to "substitute[ ] for (or ... allow the 'inference' of) intentional conduct." Commonwealth v. Welch, 16 Mass. App. Ct. 271, 274, 450 N.E.2d 1100 (1983). It was in this context, divorced from any statutory language, that the Burno court adopted the standard of "more than transient and trifling." 396 Mass. at 627, 487 N.E.2d 1366.

The Burno standard therefore does not control the question of statutory interpretation before us. Cf. Scott, 464 Mass. at 359, 982 N.E.2d 1166 ("We ... reject the standard urged by the Commonwealth, that any injury will constitute an 'impairment' under G. L. c. 265, § 13A, if it is 'more than merely transient and trifling' "). To establish a "bodily injury" under § 13K(b ), the Commonwealth has the higher burden of proving a "substantial impairment of the physical condition," which again we interpret as an injury to any body part that considerably or significantly compromises its usual bodily function. The injury must be comparable in gravity to one of the enumerated examples-"any burn, fracture, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin," G. L. c. 265, § 13K(a ) -but need not rise to the level of a "serious bodily injury." See Scott, 464 Mass. at 359, 982 N.E.2d 1166 ("degree of 'impairment' contemplated by [ § 13A(c ) ] is best understood when considered with" surrounding words and clauses). Cf. Zoning Bd. of Appeals v. Housing Appeals Comm., 457 Mass. 748, 757, 933 N.E.2d 74 (2010) ("general phrase 'conditions and requirements' ... cabined by the specific examples that follow it to conditions of the same or similar kind").

We turn to whether the evidence was sufficient in this case to prove that the victim suffered a "bodily injury." We conclude that it was. The victim's hip injury was severe enough to cause him pain and hamper his mobility for several weeks, so much so that he needed fifteen minutes just to walk twenty feet. This permitted the jury to find that the injury constituted a "substantial impairment of the physical condition," as it significantly compromised the functioning of the victim's hip in his body. Cf. Chapman, 433 Mass. at 484, 744 N.E.2d 14 ("Asphyxiation, like malnutrition or dehydration, may cause a substantial impairment of the physical condition" and thus "is a bodily injury within the meaning of § 13J(a )").

2. Honest but mistaken belief. The defendant challenges her larceny conviction on the premise that the Commonwealth failed to disprove her claim that she honestly believed she had permission to use the victim's debit card. Honest but mistaken belief is an affirmative defense to larceny. See Commonwealth v. Liebenow, 470 Mass. 151, 160, 20 N.E.3d 242 (2014) ; Commonwealth v. St. Hilaire, 470 Mass. 338, 348, 21 N.E.3d 968 (2015). To raise the defense, the defendant has the burden of production, which is satisfied if " 'any view of the evidence' would support a factual finding that the defendant honestly believed he or she had a legal right to take [the] property." St. Hilaire, 470 Mass. at 348, 21 N.E.3d 968, quoting from Liebenow, 470 Mass. at 156, 20 N.E.3d 242. If the defendant meets his or her burden, the burden shifts to the Commonwealth to disprove the defense. See St. Hilaire, 470 Mass. at 349, 21 N.E.3d 968.

In this case the defendant failed to preserve the defense because she did not give notice of it in accordance with Mass.R.Crim.P. 14(b)(3), as appearing in 442 Mass. 1518 (2004). That rule requires a defendant intending to rely on "a defense based upon a ... claim of authority" to so notify the Commonwealth before trial and file a copy of the notice with the clerk of the court. A defendant who intends to raise a defense of honest belief "is required to follow the mandate of rule 14(b)(3)." Commonwealth v. Vives, 447 Mass. 537, 542 n.4, 854 N.E.2d 1241 (2006). See Reporter's Notes to Rule 14(b)(3) (Revised 2004), Massachusetts Rules of Court, Rules of Criminal Procedure, at 163 (Thomson Reuters 2018) ("A 'claim of authority' is an assertion that the claimant has received an express or implied right to do an act from one lawfully empowered to grant such right"). The defendant's failure to do so here means that "claim of authority" was "unavailable [to her] as a defense." Commonwealth v. O'Connell, 438 Mass. 658, 665, 783 N.E.2d 417 (2003).

In any event, even assuming the defendant adequately raised the defense, the Commonwealth provided sufficient evidence to disprove it. The victim testified that he did not give the defendant permission to use his debit card from November of 2013 to the beginning of 2015, which is when the unauthorized charges appeared on his account. He also testified that, during that period, he questioned the defendant numerous times about the missing money and told her that he was falling behind on his bills. Furthermore, before November of 2013, the victim had permitted the defendant to use the card on only a handful of occasions to make small purchases, yet the total of the unauthorized charges amounted to thousands of dollars. A rational jury could have rejected the defendant's claim of honest belief based on this evidence. See Liebenow, 470 Mass. at 161, 20 N.E.3d 242 ("Evidence of reasonableness may ... be considered by the jury to assist in their determination whether to credit a defendant's honest belief").

3. Closing argument. The defendant next contends that the prosecutor's statement during summation that "the defendant admitted to everything" mischaracterized the evidence. Because the defendant did not object, we review any error for a substantial risk of a miscarriage of justice. See Commonwealth v. St. Louis, 473 Mass. 350, 359, 42 N.E.3d 601 (2015).

We see no error. The prosecutor immediately went on to state that the defendant "admitted that she did push [the victim] when the [investigating officer] called her" and "admitted to [the victim] numerous times that she took the money out of his account." These statements were firmly grounded in the evidence. While the prosecutor's comment that the defendant admitted to "everything" was perhaps hyperbolic, it does not warrant reversal. See Commonwealth v. Sylvia, 456 Mass. 182, 195, 921 N.E.2d 968 (2010), quoting from Commonwealth v. Ruiz, 442 Mass. 826, 835, 817 N.E.2d 771 (2004) ("Excusable hyperbole is not a ground for reversal, and the jury are presumed to have a certain measure of sophistication in sorting out excessive claims on both sides").

4. Ineffective assistance of counsel. We need not dwell on the defendant's argument that her trial counsel was ineffective. An ineffective assistance claim "made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5, 770 N.E.2d 440 (2002). Such claims may be resolved on direct appeal, as opposed to on a motion for new trial, only where "the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Zinser, 446 Mass. 807, 811, 847 N.E.2d 1095 (2006), quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344, 639 N.E.2d 1092 (1994). This is not such a case. We have no affidavit from counsel, and the record does not indisputably establish that his strategy was either manifestly unreasonable or "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974).

Judgments affirmed.

      Before November of 2013, the victim permitted the defendant to use the card approximately six times to make small purchases.

      An "[e]lder" is "a person sixty years of age or older." G. L. c. 265, § 13K(a ), inserted by St. 1995, c. 297, § 4.

      Scott concerned a conviction of assault and battery causing "serious bodily injury" under § 13A(b )(i). Scott, 464 Mass. at 358, 982 N.E.2d 1166. The meaning of "impairment" was at issue because G. L. c. 265, § 13A(c ), as appearing in St. 2002, c. 35, § 1, defines "serious bodily injury" to include "bodily injury that results in ... loss or impairment of a bodily function, limb or organ."

      This statute proscribes assault and battery on a child and defines "bodily injury" as a "substantial impairment of the physical condition including any burn, fracture of any bone, subdural hematoma, injury to any internal organ, any injury which occurs as the result of repeated harm to any bodily function or organ including human skin or any physical condition which substantially imperils a child's health or welfare." G. L. c. 265, § 13J(a ), inserted by St. 1993, c. 340, § 2.

      Section 13K(a ), defines "serious bodily injury" as "bodily injury which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or a substantial risk of death." This definition is nearly identical to the one analyzed in Scott. Compare G. L. c. 265, § 13K(a ), with G. L. c. 265, § 13A(c ).

      Although not requested by the defendant, the judge gave the following instruction on honest but mistaken belief: "If the defendant took another person's property in an honest belief that she had a legal right to do so, then you must find the defendant not guilty, even if that belief was in fact mistaken, because she then lacked the intent to steal." This tracks the District Court's model jury instruction except that the judge, correctly in accordance with Liebenow, 470 Mass. at 158-161 & n.14, 20 N.E.3d 242, omitted the part of the model instruction requiring the defendant's belief to be "reasonable." Instruction 8.520 of the Criminal Model Jury Instructions for Use in the District Court (Supplemental Instruction No. 7) (2009). We note that the model instruction has not been revised to conform with Liebenow. We also note that the model instruction does not include language explaining the requirement that, if the defendant has met his or her burden of production, the Commonwealth must prove beyond a reasonable doubt that the defendant did not honestly believe that he or she had the right to take the property. See Vives, 447 Mass. at 541, 854 N.E.2d 1241 ; St. Hilaire, 470 Mass. at 348-349, 21 N.E.3d 968. Cf. Instruction 9.260 of the Criminal Model Jury Instructions for Use in the District Court (2009) ("If evidence of self-defense is present, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense").
      Here, the adequacy of the judge's instruction is not before us. While the defendant claims that her attorney was ineffective for failing to request an instruction explaining these shifting burdens, she raises no independent challenge to the instruction itself. And had she raised such a challenge, we would examine the instruction in light of the charge as a whole, which made plain the Commonwealth's burden of proving beyond a reasonable doubt each element of the crime, including specific intent to steal. In similar circumstances the court in Vives, 447 Mass. at 542-543, 854 N.E.2d 1241, deemed the judge's instruction on honest belief to be adequate.

      The defendant also suggests that the prosecutor misstated the evidence when he argued that the defendant took the money with "no intention to pay it back, because ... she kept doing it." She does not develop this argument further, and we decline to address it.

      The defendant challenges the following aspects of trial counsel's performance: (1) his failure to request an honest belief instruction that explained the parties' shifting burdens; (2) his failure to object to the prosecutor's closing argument; and (3) his eliciting of, and failing to move to strike, testimony that the defendant has a "history of drug abuse."


author: O'Donnell, J.

text:
    IN RE Disqualification of TEODOSIO, Carr, Dickinson, and Whitmore.
    The State of Ohio v. Gordon.
    No. 17-AP-115
    Supreme Court of Ohio.
    Decided December 14, 2017
   O'Donnell, J.

{¶ 1} Dante' D. Gordon has filed an affidavit with the clerk of this court pursuant to R.C. 2501.13 and 2701.03 seeking to disqualify Judge Thomas Teodosio, Judge Donna Carr, Judge Beth Whitmore, and Judge Clair Dickinson from hearing his pending appeal. Pursuant to Ohio Constitution, Article IV, Section 5 (C) and R.C. 2701.03, Chief Justice O'Connor recused herself from participation in this matter and designated the undersigned to hear the disqualification request.

{¶ 2} Gordon claims that all four judges are biased against him. In support of his allegations, Gordon avers that Judge Teodosio presided over postconviction proceedings in this case while serving as a common pleas court judge and that each of the named judges committed legal errors in deciding his previous motions and appeals.

{¶ 3} C. Michael Walsh, the court administrator for the Ninth Appellate District, submitted a written response to Gordon's affidavit.

{¶ 4} For the reasons explained below, the affidavit of disqualification is not well taken because Gordon has not established that any of the judges should be disqualified.

{¶ 5} Walsh reports that because Judge Teodosio served as a trial judge in the matter, he has already recused himself from Gordon's pending appeal. See Jud.Cond.R. 2.11(A)(7)(d) (requiring a judge to disqualify himself or herself if the judge "previously presided as a judge over the matter in another court"). Accordingly, the affidavit of disqualification is denied as moot as to Judge Teodosio.

{¶ 6} Next, Walsh notes-and we take judicial notice of the fact-that Judge Beth Whitmore and Judge Clair Dickinson are both retired and no longer serve on the Ninth District Court of Appeals. Therefore, given that they cannot be assigned to hear Gordon's pending appeal, the affidavit of disqualification does not comport with R.C. 2501.13 (authorizing litigants to file an affidavit of disqualification against "a judge of the court of appeals") as to them and is not well taken. Accordingly, the affidavit is denied as to Judges Whitmore and Dickinson.

{¶ 7} Finally, Judge Carr has supplemented the response with an affidavit attesting to her impartiality and stating that if assigned to hear this matter, she will be fair and impartial. Her resolution of Gordon's prior appeals does not prove that she cannot be fair in hearing this matter.

{¶ 8} It is well established that "a judge's adverse rulings, even erroneous ones, are not evidence of bias or prejudice."

In re Disqualification of Fuerst , 134 Ohio St.3d 1267, 2012-Ohio-6344, 984 N.E.2d 1079, ¶ 14 ; see also In re Disqualification of Russo , 110 Ohio St.3d 1208, 2005-Ohio-7146, 850 N.E.2d 713, ¶ 6 (the chief justice's "statutory and constitutional authority to decide whether judges can serve fairly and impartially does not empower [the chief justice] to remove a trial or appellate judge from a case every time a party is particularly unhappy about a court ruling or series of rulings"). Thus, Gordon has not set forth sufficient grounds for removing Judge Carr from the underlying appeal, and the affidavit of disqualification as to Judge Carr is denied.


author: Mock, Presiding Judge.

text:
    STATE of Ohio, Plaintiff-Appellant, v. Ernest L. THYOT, Defendant-Appellee.
    NOS. C-170178 C-170179
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: February 21, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
    Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellee.
    OPINION.
   Mock, Presiding Judge.

{¶ 1} Plaintiff-appellant, state of Ohio, appeals from the decision of the Hamilton County Municipal Court granting the motion in limine filed by defendant-appellee Ernest L. Thyot. We find merit in the state's sole assignment of error, and therefore, we reverse the trial court's judgment and remand the cause for further proceedings.

I. Facts and Procedure

{¶ 2} The record shows that Thyot was charged with operating a motor vehicle while under the influence of alcohol under R.C. 4511.19(A)(1)(a) and driving under suspension under R.C. 4510.11(A). He filed a motion in limine seeking to exclude a video taken from a Thornton's gas station purportedly showing him operating a motor vehicle on the date in question.

{¶ 3} At a hearing on the motion, the state presented the testimony of Tom Tegenkamp, a regional manager for Thornton's Oil Co. He supervised eight stores, including store 560, located at 12185 Princeton Pike. He was familiar with that store because he had helped open it about a year prior to the hearing.

{¶ 4} Tegenkamp was also familiar with the store's surveillance system, which he had used in the past for "various investigations and that sort of thing." He testified that it was a "continuous recording closed-circuit surveillance system," meaning that there were 12 to 16 cameras at each store, which were recording "24 hours a day, seven days a week." Tegenkamp was one of three people who could access the system, and the videos were made in the ordinary course of business.

{¶ 5} The system stored all recordings on the hard drive, which was kept for 90 days. The hard drives were stored in the office at the site. If a recording had to be saved longer than 90 days, it was burned onto a DVD or stored on a flash drive.

{¶ 6} Tegenkamp identified a frame of a video on a DVD as a "video of our fueling areas in front of * * * Store 560." He also testified that the video was taken on July 4, 2016, at 9:00 in the evening. He knew the date and time because it was "superimposed on the bottom of the picture, right below the picture." He indicated that there had been no problems with the recording system in the past and that he had no reason to believe the time and date were inaccurate.

{¶ 7} Tegenkamp acknowledged that he was not present when the video was recorded, and that he had no personal knowledge of the events that appeared in the video. He was also not the individual who had burned the video onto a DVD.

{¶ 8} Following the hearing, the trial court granted Thyot's motion in limine. The court noted that the state had to prove that the video tape "fairly, truly and accurately" depicted what it purported to depict and that the "condition of the video has not been altered, edited, or distorted." It found:

1. The witness was not the custodian of the video DVD[.]
2. The witness did not have custody or control over the burned copy[.]
3. The witness had no personal knowledge of video DVD equipment reliability to record[,] burn or copy[.]
4. The wit[ness] was not [at] the scene of the videotaping or burning of copy[.]
5. The wit[ness] did not prepare the video DVD for court[.]
6. The wit[ness] cannot testify that the video DVD fairly and accurately depicted what the proponent said it did[.]

{¶ 9} Based on those findings, the court held that the video was not adequately authenticated. The state has filed an interlocutory appeal from the trial court's judgment. Before we address the state's assignment of error, we must address Thyot's argument that the state has no right to appeal from the denial of the motion in limine.

II. The State's Right to Appeal

{¶ 10} R.C. 2945.67 states that a prosecuting attorney may appeal as a matter of right "any decision of the trial court in a criminal case * * * which decision grants * * * a motion to suppress evidence[.]" Crim.R. 12(K) (formerly Crim.R. 12(J) ) "supplements and formalizes the statutory procedure." State v. Davidson , 17 Ohio St.3d 132, 134, 477 N.E.2d 1141 (1985). The rule provides that when the state takes an appeal from an order suppressing or excluding evidence, the prosecuting attorney must certify that (1) the appeal is not taken for purpose of delay, and (2) the ruling on the motion or motions has rendered the state's proof so weak in its entirety that any reasonable probability of effective prosecution has been destroyed. State v. Hatter , 1st Dist. Hamilton Nos. C-130326, C-130331, C-130332 and C-130353, 2014-Ohio-1910, 2014 WL 1871506, ¶ 7.

{¶ 11} As a general rule, rulings on motions in limine are interlocutory and are not final, appealable orders. State v. Grubb , 28 Ohio St.3d 199, 201-202, 503 N.E.2d 142 (1986) ; Hatter at ¶ 6. But, the Ohio Supreme Court has stated,

Any motion, however labeled, which, if granted, restricts the state in the presentation of certain evidence and, thereby, renders the state's proof with respect to the pending charge so weak in its entirety that any reasonable probability of effective prosecution has been destroyed, is, in effect, a motion to suppress. The granting of such a motion is a final order and may be appealed pursuant to R.C. 2945.67 and Crim.R. 12(J).

Davidson at syllabus.

{¶ 12} In Hatter , the defendant filed a motion in limine, contending that statements made by a murder victim were inadmissible hearsay and other-acts evidence. The trial court granted the motion, and the state appealed. This court held that the granting of the motion was a final order from which the state was permitted to appeal under R.C. 2945.67, as long as it had followed the provisions of Crim.R. 12(K). Hatter at ¶ 9. We stated, "The granting of Hatter's pretrial motion excluding the witnesses' testimony in its entirety severely weakened the state's case so that any reasonable probability of effective prosecution was destroyed. Therefore the trial court was correct in recasting the motion as one requesting the suppression of evidence." Id. at ¶ 9. See State v. Jackson , 92 Ohio App.3d 467, 469, 636 N.E.2d 332 (1st Dist.1993).

{¶ 13} The same reasoning applies in this case. Though the trial court did not say that it was recasting the motion in limine as a motion to suppress, this court can do so. Thus, the ruling on the motion in limine was a final order, which the state was permitted to appeal under R.C. 2945.67, as long as it followed the provisions of Crim.R. 12(K).

{¶ 14} The state complied with the requirements of Crim.R. 12(K). Thyot takes issue with the state's certification that the granting of the motion severely weakened the state's case so that any reasonable possibility of effective prosecution was destroyed. But the Ohio Supreme Court has held that an appellate court is without authority to review the prosecutor's Crim.R. 12(K) certification. Therefore, a court of appeals may not dismiss the prosecutor's appeal for want of a final, appealable order based on the merits of the prosecutor's certification. State v. Bertram , 80 Ohio St.3d 281, 285, 685 N.E.2d 1239 (1997).

III. Merits of the State's Appeal

{¶ 15} We turn now to the merits of the state's appeal. In its sole assignment of error, the state contends that the trial court erred in granting Thyot's motion in limine. It argues that it adequately authenticated the video. This assignment of error is well taken.

A. Standard of Review

{¶ 16} Generally, the standard of review for evidentiary motions, such as motions in limine, is abuse of discretion. State v. Garrett , 1st Dist. Hamilton No. C-090592, 2010-Ohio-5431, 2010 WL 4514267, ¶ 25. But other appellate courts have held that when a motion in limine is the functional equivalent of a motion to suppress, courts should use the standard of review applicable to a motion to suppress. See State v. Hignite , 12th Dist. Warren No. CA2015-07-063, 2015-Ohio-5204, 2015 WL 8769569, ¶ 12 ; State v. Johnston , 2d Dist. Montgomery No. 26026, 2015-Ohio-450, 2015 WL 502322, ¶ 27; State v. Greaves , 2012-Ohio-1989, 971 N.E.2d 987, ¶ 8-11 (6th Dist.). We agree with the reasoning of those courts, and we apply that standard of review in this case.

{¶ 17} Appellate review of a motion to suppress presents a mixed question of law and fact. We must accept the trial court's findings of fact as true if competent, credible evidence supports them. But we must independently determine whether the facts satisfy the applicable legal standard. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8 ; State v. Sweeten , 1st Dist. Hamilton No. C-150583, 2016-Ohio-5828, 2016 WL 4987283, ¶ 8.

B. Authentication

{¶ 18} Evid.R. 901(A) states that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Put another way, "[t]he authentication requirement is satisfied when the proponent presents foundational evidence or testimony from which a rational jury may determine that the evidence is what its proponent claims it to be." State v. Crossty , 1st Dist. Hamilton No. C-170085, 2017-Ohio-8382, 2017 WL 4999909, ¶ 29. This court has stated that "[t]his burden is not great, and only requires a prima facie showing through direct or circumstantial evidence." Id.

{¶ 19} Photographic evidence, including videotapes, can be admitted under two theories. Under the pictorial-testimony theory, evidence is admissible "when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on the witness' personal observation." Midland Steel Prod. Co. v. U.A.W. Local 486 , 61 Ohio St.3d 121, 129-130, 573 N.E.2d 98 (1991) ; State v. Hoffmeyer , 9th Dist. Summit No. 27065, 2014-Ohio-3578, 2014 WL 4088108, ¶ 19. Under the silent-witness theory, photographic evidence is a "silent witness," which "speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness." Midland Steel at 129-130, 573 N.E.2d 98 ; State v. Maiolo , 2d Dist. Clark No. 2015-CA-15, 2015-Ohio-4788, 2015 WL 7428568, ¶ 11. Under that theory, evidence is admissible "upon a sufficient showing of the reliability of the process or system that produced the evidence." Midland Steel at 130, 573 N.E.2d 98 ; Hoffmeyer at ¶ 19. No expert testimony is required to substantiate the reliability of the surveillance system. State v. Pickens , 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 151 ; Midland Steel at 130, 573 N.E.2d 98.

{¶ 20} The video was admissible under the silent-witness theory. Tegenkamp testified that the video was a recording of what was taking place outside of Thornton's store 560, with which he was familiar. He testified about how the system worked, and the way it recorded and stored video in the ordinary course of business. He further testified that it was a problem-free system that continuously recorded what occurred in the area outside the Thornton store. While he had no personal knowledge of the contents of the video and was not present when it was burned to the DVD, those facts are not dispositive. He knew the system and the storage method for the recordings, and he had used the system in previous investigations.

{¶ 21} This evidence was sufficient to authenticate the video. The threshold for authentication is low and does not require conclusive proof of authenticity. State v. Freeze , 12th Dist. Butler No. CA2011-11-209, 2012-Ohio-5840, 2012 WL 6115671, ¶ 65. Instead, the proponent has the burden to demonstrate a "reasonable likelihood" that the evidence is authentic. Hoffmeyer at ¶ 18 ; Freeze at ¶ 65. Any defects in the testimony go to the weight of the evidence, not its authenticity.

{¶ 22} Thyot and the trial court took issue with the fact that Tegenkamp was not the custodian of the video. But the video was admissible into evidence as a business record under Evid.R. 803(6). This court has stated that the custodian of the records or other qualified witness may lay the requisite foundation for admissibility. (Emphasis added.)

Great Seneca Fin. v. Felty , 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶ 10 (1st Dist.). The testifying witness must possess a working knowledge of the specific record-keeping system that produced the document. State v. Davis , 62 Ohio St.3d 326, 342, 581 N.E.2d 1362 (1991) ; State v. Hirsch , 129 Ohio App.3d 294, 312, 717 N.E.2d 789 (1st Dist.1998). "While the witness need not have personal knowledge of the creation of the particular record in question * * *, he must be able to vouch from personal knowledge of the record-keeping system that such records were kept in the regular course of business." Hirsch at 312, 717 N.E.2d 789, quoting Davis at 342, 581 N.E.2d 1362. Tegenkamp met these requirements.

{¶ 23} Under the circumstances, we hold that the state adequately authenticated the video. The video was admissible into evidence, and the trial court erred in granting Thyot's motion in limine. We sustain the state's assignment of error, reverse the trial court's judgment, and remand the cause to the trial court for further proceedings consistent with the law and this opinion.

Judgment reversed and cause remanded.

Zayas and Miller, JJ., concur.