text:
    COMMONWEALTH v. BASIL B., a juvenile.
    17-P-827
    Appeals Court of Massachusetts.
    Entered: July 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Juvenile Court on November 10, 2016, the court adjudicated the juvenile delinquent by reason of, among other things, one count of disturbing the peace, in violation of G. L. c. 272, § 53. The judge sentenced the juvenile to one year of probation along with special conditions, which included a 6:00 P.M. curfew unless accompanied by a parent or grandparent. At the close of the Commonwealth's case, the juvenile moved for required findings of not guilty; as relevant here, the motion was denied as to the charge of disturbing the peace.

On December 29, 2016, the juvenile was arrested for disorderly conduct, violating his curfew condition, and resisting arrest. The judge held an evidentiary hearing on January 19, 2017, and found, by a preponderance of the evidence, that the juvenile "violated the conditions of his probation by committing an offense of disorderly conduct and violation[ ] of his curfew." The judge subsequently revoked the juvenile's probation and committed the juvenile to the Department of Youth Services.

The juvenile appeals from both the adjudication of delinquency for disturbing the peace and from the order revoking probation. We affirm.

Background. 1. Jury trial. Based on the evidence presented at trial on November 10, 2016, the jury could have found the following facts. Around 6:00 P.M. on August 3, 2016, Brockton police Officer Brain Benvie responded to a motor vehicle pursuit near Brockton High School. Upon arriving at the area, Officer Benvie observed an unoccupied motor vehicle that had crashed. After Officer Benvie parked his cruiser, the juvenile came out of a backyard and started "walking towards the street up a driveway." One of the officers on the scene yelled, "Grab that guy. That's one of the passengers." Officer Benvie testified that the juvenile was "yelling and swearing" at the officers, and that because the juvenile was "hostile" and "slightly resistant," the officers "had to take him to the ground and handcuff him on the ground." This occurred "at the end of the driveway and on the sidewalk." Officer Benvie testified that while the officers were arresting the juvenile, the street was "heavily trafficked" due to the time of day, and that a "number of vehicles" stopped. Officer Benvie also testified that "[s]ome people in the neighboring houses came up to see what was going on." It took the officers approximately five to ten minutes to get the juvenile into the back of a cruiser. The jury found the juvenile delinquent on the charge of disturbing the peace.

2. Probation revocation hearing. The judge could have found the following facts from the evidentiary hearing conducted on January 19, 2017. On December 9, 2016, Sergeant Daniel Desmarais of the Lowell police department was working the overnight shift when he observed a motor vehicle run a red light around 2:30 A.M. Sergeant Desmarais observed "three younger-looking Hispanic males" inside the vehicle. Sergeant Desmarais pursued the motor vehicle with his blue cruiser lights and siren on. The vehicle took off at a "high rate of speed." The vehicle then stopped in the middle of the street and the three males got out of the vehicle and fled on foot. Sergeant Desmarais testified that while the three males were running up the middle of the street, a vehicle turned on to the same street and because the three males "were running directly in [the vehicle's] path," the driver had to "brake heavily" to avoid hitting them. The group of three males then split into two groups with one male running in one direction and the two other males running in another. Sergeant Desmarais pulled his cruiser next to the group of two males, which included the juvenile, and ordered them to "stop" and "get on the ground." The juvenile and the other individual did not comply, rather, they continued to flee and dispersed in different directions. The juvenile as well as another male were later located by other officers.

Discussion. 1. Adjudication of delinquency for disturbing the peace. The juvenile maintains that the Commonwealth presented insufficient evidence to support the jury finding him delinquent by reason of disturbing the peace, and, therefore, the judge erred in denying the juvenile's motion for a required finding. We disagree.

In reviewing the denial of a motion for a required finding, we "consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged ...." Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740 (1975). "The evidence may be primarily or entirely circumstantial, provided that, when viewed in the light most favorable to the Commonwealth, it and the inferences permitted to be drawn therefrom [are] of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt." Commonwealth v. Jansen, 459 Mass. 21, 27 (2011), quoting from Latimore, supra at 677. An inference "need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Casale, 381 Mass. 167, 173 (1980).

"As used in G. L. c. 272, § 53, as amended by St. 1943, c. 377, the phrase 'disturbers of the peace' is construed in accordance with the common-law definition of the offense, making it a crime 'to disturb the peace of the public, or some segment of the public, by actions, conduct or utterances, the combination of which constitute[s] a common nuisance.' " Commonwealth v. Federico, 70 Mass. App. Ct. 711, 714 (2007), quoting from Commonwealth v. Jarrett, 359 Mass. 491, 493 (1971). We use a two-part test in determining whether an individual's conduct amounts to that of disturbing the peace. First, the activity must be that which "most people find to be unreasonably disruptive." Id. at 714, quoting from Commonwealth v. Orlando, 371 Mass. 732, 735 (1977). Second, the activity must "in fact infringe on someone's right to be undisturbed." Ibid., quoting from Orlando, supra.

Under this test and reviewing the evidence in the light most favorable to the Commonwealth, we conclude that there was sufficient evidence presented at trial to allow the jury to find that the juvenile's conduct constituted a disturbance of the peace. Officer Benvie testified that the juvenile was "hostile," and "yelling and swearing" at the officers, and that such conduct, in combination with the arrest occurring on the sidewalk next to a "heavily trafficked" street, caused a number of vehicles stopped to observe the commotion. In addition, there was testimony that neighbors left their homes to observe the commotion. The fact finder therefore could reasonably infer that "the average bystander would have found the [juvenile's] conduct at the time of his arrest," (i.e., his yelling and swearing at the officers, his hostile behavior as well as slightly resistant conduct), "unreasonably disruptive," as evidenced by the stopped vehicles and neighbors leaving their homes to watch. Commonwealth v. Hokanson, 74 Mass. App. Ct. 403, 405-406 (2009).

2. Probation revocation for disorderly conduct. The juvenile next argues that there was insufficient evidence to support the judge's finding at the probation violation hearing that the juvenile was disorderly, and, thus, the judge erred in revoking the juvenile's probation based on that conduct. We disagree.

We review a probation revocation decision to determine "whether the record discloses sufficient reliable evidence to warrant the findings by the judge." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000). "The standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence...." Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001). "A proposition is proved by a preponderance of the evidence 'if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.' " Ibid., quoting from Sargent v. Massachusetts Acc. Co., 307 Mass. 246, 250 (1940).

"The statute authorizing prosecutions for disorderly conduct, G. L. c. 272, § 53, has been saved from constitutional infirmity by incorporating the definition of 'disorderly' contained in § 250.2(1)(a) and (c) of the Model Penal Code (1980). See Commonwealth v. Chou, 433 Mass. 229, 231-232 (2001) (summarizing history of § 53 and its construction)." (Footnote omitted.) Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 582 (2003).

"The resulting definition of 'disorderly' ... includes only those individuals who, 'with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ...: (a) engage[ ] in fighting or threatening, or in violent or tumultuous behavior; or ... (c) create[ ] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.' "

Ibid., quoting from Chou, supra at 232. "Public is defined as affecting or likely to affect persons in a place to which the public or a substantial group has access." Ibid. (quotation omitted).

Here, we agree with the judge that the Commonwealth satisfied the applicable burden of proof. The Commonwealth's evidence showed that the juvenile's conduct, i.e., fleeing from Sergeant Desmarais and running up the middle of a street at 2:30 A.M. , caused a turning vehicle to "brake heavily" in order to avoid hitting the juvenile. The judge specifically found, and we agree, that the juvenile

"engaged in a hazardous condition with an act that served no legitimate purpose; that it was reasonably likely to affect the public; and that, in fact, it recklessly created a risk of public inconvenience, annoyance or alarm as he ran directly up the middle of the street, such that a car coming around the corner had to brake hard to avoid hitting [the juvenile] as he ran at [2:30 A.M. ] up the middle of the street."

The juvenile's conduct "was risking not only his own safety but that of others," specifically, the driver of the vehicle who had to "brake heavily" to avoid collision. Commonwealth v. Bosk, 29 Mass. App. Ct. 904, 907 (1990). The judge did not err in finding, by a preponderance of the evidence, that the juvenile's conduct was sufficient to adjudicate the juvenile delinquent for disorderly conduct. Thus, the judge's decision to revoke the juvenile's probation was well within her discretion. See Commonwealth v. Durling, 407 Mass. 108, 111 (1990) ("If the judge determines that the [juvenile] is in violation, [she] can either revoke the probation and sentence the [juvenile] or, if appropriate, modify the terms of his probation. How best to deal with the probation is within the judge's discretion").

Adjudications of delinquency affirmed.

Order revoking probation affirmed.

      The juvenile was also found delinquent on one count of assault, in violation of G. L. c. 265, § 13A. The juvenile does not challenge that adjudication on appeal.

      The resisting arrest charge was dismissed on the same day.

      We consider the time and place of the activity in determining whether it is "unreasonably disruptive." Federico, supra at 714-715, quoting from Commonwealth v. Orlando, 371 Mass. 732, 735 (1971).

      "The first prong is normative and protects potential defendants from prosecutions based on individual sensitivities. The second prong requires that the crime have a victim, and thus subjects potential defendants to criminal prosecution only when their activities have detrimental impact." Orlando, supra.


source: Caselaw Access Project

license: Public Domain

text:
    27 RAMSDELL AVENUE, LLC v. Fitzroy L. BROWN.
    17-P-972
    Appeals Court of Massachusetts.
    Entered: July 20, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   This appeal follows a series of proceedings in the Superior Court, Federal District Court, and Housing Court arising from the contested foreclosure of a home formerly owned by the defendant, Fitzroy L. Brown, and his wife. The defendant appeals from a Housing Court summary process judgment, claiming the judge erred in granting summary judgment to the plaintiff, 27 Ramsdell Avenue, LLC, and dismissing the defendant's counterclaims and awarding possession to the plaintiff. Concluding that the defendant's arguments on appeal are either barred by res judicata or were not raised in opposition to the plaintiff's motion for summary judgment, we affirm.

1. Standard of review. "We review a grant of summary judgment de novo." Deutsche Bank Natl. Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). The issue on appeal is "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). In addition, we do not consider any issue not raised or argued below, see Pelullo v. Croft, 86 Mass. App. Ct. 908, 909 n.3 (2014), and we deem as waived for purposes of appeal any theory of recovery or defense not included by the parties on the motion for summary judgment, see Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).

2. Discussion. The defendant's initial argument, both on appeal and in opposition to summary judgment, is that the plaintiff has no right to title or possession of the property and lacks standing to bring the summary process action because it acquired title through an invalid assignment to its predecessor in interest, CitiMortgage, Inc. (CitiMortgage). This matter could have been litigated in the Superior Court action brought by the defendant on January 13, 2012 (2012 action), against CitiMortgage. Indeed, any claim or issue related to the plaintiff's title is predicated on the validity of CitiMortgage's title, which was questioned in the defendant's third amended complaint in the 2012 action, and could have been resolved in that proceeding. The Superior Court judge entered judgment against the defendant, and he did not appeal. As a result, the defendant's claim in the Housing Court action is precluded by res judicata. See DeGiacomo v. Quincy, 476 Mass. 38, 41 (2016), quoting from Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005) ("Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action").

Nonetheless, the defendant argues that claims related to title and foreclosure are not precluded because they could not have been litigated in the initial Superior Court action decided before the foreclosure process began on June 30, 2016. The problem, however, is that the alleged invalidity of the December, 2011, assignment of the mortgage to CitiMortgage could have been litigated even before the foreclosure began. Given that the defendant was aware of the assignment, openly questioned its validity, and the right of CitiMortgage to foreclose on the defendant's home was fundamental to the defendant's 2012 action, this matter could and should have been litigated in the proceedings prior to the foreclosure. Likewise, the only other challenge specifically discussed in the Housing Court was the 2009 "Home Affordable Modification Program" contract; those claims or issues (as noted by the defendant) were previously adjudicated and decided against the defendant. Accordingly, they are now barred by res judicata. See DeGiacomo, 476 Mass. at 41-42.

Beyond this, the defendant's opposition to summary judgment did not raise any other independent title defect or matter arising out of the foreclosure that could now be litigated. "An issue not raised or argued below may not be argued for the first time on appeal." Carey, 446 Mass. at 285, quoting from Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) (court deemed issue waived where "plaintiffs never put the judge on notice that they opposed summary judgment on [that] theory"). Specifically, the defendant now argues the foreclosure was void because (1) the foreclosing attorney was not duly authorized; and (2) CitiMortgage otherwise failed to comply with several specific statutory requirements for a valid foreclosure. Because these arguments were not raised in the defendant's opposition to summary judgment, he cannot rely on them now. See Moronta v. Nationstar Mort., LLC, 88 Mass. App. Ct. 621, 626 n.12 (2015) (declining to address mortgagee's arguments on appeal that were not raised below).

We recognize the defendant represented himself before the Housing Court and on appeal. "[A]lthough some leniency is appropriate" in determining whether a pro se litigant complies with procedural requirements, Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183, 184 (1994), the defendant "is bound by the same procedural rules applicable to other litigants," Lawless v. Board of Registration in Pharmacy, 466 Mass. 1010, 1011 n.3 (2013). Because these issues were not raised below, there was no opportunity for the parties to develop a record on them and we are without guidance from the Housing Court judge. Accordingly, we are unable to review these issues here, regardless of whether they can be considered in some other forum.

Judgment affirmed.

      The defendant's wife, Dawne Brown, did not file a responsive pleading or appear at trial in the Housing Court. As a result, she was defaulted and is no longer a party to this action.

      This program is also referred to in the materials before us as the "Home Affordable Mortgage Program."

      The only reference to strict statutory compliance in foreclosure proceedings relates specifically to the defendant's already-foreclosed title defect argument.

      The plaintiff's request for double costs is denied.


text:
    COMMONWEALTH v. Stephen JOYCE.
    16-P-1531
    Appeals Court of Massachusetts.
    Entered: July 19, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant was convicted by a Superior Court jury of three counts of statutory rape. The defendant appeals, claiming (1) that the trial judge abused his discretion in allowing the admission of certain "prior bad acts" evidence of contemporaneous uncharged conduct, (2) that the trial judge erred in allowing the Commonwealth to amend two counts of the indictment, and (3) that certain statements during the Commonwealth's closing argument were improper and thus require a new trial. We affirm.

1. Background. We recite the material facts as the jury reasonably could have found them, reserving some facts for later discussion.

a. Allegations. The victim testified that the defendant repeatedly touched her and digitally raped her during various periods from when she was age eight to age fourteen. The defendant was a friend of the victim's mother who, during the time period in question, would regularly sleep over at the victim's home in the Dorchester section of Boston. During this time, the defendant, the victim, and the mother would all sleep in the same bed.

In 2011, a Suffolk County grand jury indicted the defendant on three counts of rape of a child under the age of sixteen (statutory rape), in violation of G. L. c. 265, § 23, and three counts of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B. The rape and the indecent assault counts were paired by time frame: that is, counts 1 and 4 alleged rape and indecent assault, respectively, in 2004-2005, when the victim was eight and nine; counts 2 and 5 alleged rape and indecent assault, respectively, in 2007-2008, when the victim was ten and eleven; and counts 3 and 6 alleged rape and indecent assault, respectively, in October and November of 2010, when the victim was thirteen.

Immediately prior to trial, the Commonwealth moved to amend counts 2 and 5 to extend the time period by two years, from "divers dates between 2007 and 2008," to "divers dates on about and between 2007 and September 2010." The judge allowed the motion, stating that the amendments were a matter of form rather than substance, and that there was no prejudice to the defendant in allowing the motion.

b. Motion in limine. Prior to trial, the Commonwealth moved to introduce evidence of uncharged, "contemporaneous bad acts" -- in particular, an occasion when the defendant had taken the victim to his home in Lowell, where the victim's mother was not present. The motion in limine set out that, on this occasion, the victim "woke up to the defendant between [her] legs and his mouth on her vagina." Following a hearing, the trial judge allowed the motion, relying on Commonwealth v. King, 387 Mass. 464, 469-473 (1982). The judge noted that the uncharged conduct was relevant to motive, opportunity, state of mind, intent, the relationship between the defendant and the victim, and the absence of mistake or accident. The judge indicated that he would provide a limiting instruction as to the permissible uses of the evidence.

c. Trial. The case was tried to a jury in the summer of 2014. In brief, the evidence, taken in the light most favorable to the Commonwealth, showed that the defendant had been involved with the victim's family since the victim was seven years old. The defendant, the victim, and the victim's mother would typically sleep together in the mother's bed. The victim testified to numerous incidents beginning when she was eight years old. On several occasions, the victim awoke in her mother's bed to find the defendant touching her vagina with his hand over or under her clothes, or squeezing her chest and buttocks under her clothing.

The victim told her mother about these incidents when she was eight, and thereafter the victim met with a social worker. The social worker testified at trial, and confirmed that the victim told her of the touchings in 2005. The social worker also testified that she spoke to the defendant in 2005 about the allegations. The defendant denied assaulting the victim, though the defendant indicated that the victim would sleep between him and the victim's mother in the mother's bed.

After a hiatus in 2006 while the mother was away at a program for alcohol use, the defendant resumed spending the night with the victim and her mother, and the assaults continued. The victim testified to various touchings of her private body parts while in the mother's home, including the defendant "touching ... the inner part" of her vagina with his fingers -- continuing until she was fourteen years old.

The victim also testified about the uncharged conduct that occurred at the defendant's home in Lowell: she testified that when she was ten years old, she visited the defendant's home alone, where he touched the victim "the same way as [in her] mother's bed." She testified that the defendant "touch[ed]" her vagina with his hand and also used his tongue to touch "[t]he inner part" of her vagina. Immediately following this testimony, the judge gave a limiting instruction, to which there was no objection.

d. Verdict. The defendant was found guilty on all three counts of statutory rape, and acquitted of the three counts of indecent assault and battery (relating to touching the victim's breasts).

2. Discussion. a. Evidence of uncharged conduct. On appeal, the defendant raises three issues. The defendant first argues that the trial judge abused his discretion by allowing the evidence of uncharged conduct that occurred at the defendant's home in Lowell, because the evidence was overwhelmingly suggestive of the defendant's propensity for criminal conduct and distracted the jury from the actual charged crimes. We review a judge's decision to admit evidence for abuse of discretion and, if there was error, whether that error prejudiced the defendant. Commonwealth v. Carey, 463 Mass. 378, 388, 392 (2012) ("We entrust questions of relevancy and prejudicial effect to the sound discretion of the trial judge, whose determinations we will not disturb except for palpable error") (quotation omitted).

There was no abuse of discretion here. As the Supreme Judicial Court explained in King, 387 Mass. at 469, while evidence of past crimes "may not be used to show commission of the crime charged," such evidence can be admitted "to establish knowledge, intent, motive, method, material to proof of the crime charged" (quotation omitted). The King court specifically addressed the admissibility of evidence of uncharged sexual conduct between the defendant, the victim, and the victim's brother. Ibid. The court held that such evidence could be admitted to show a "common pattern or course of conduct," where it was "similar" conduct, and was "sufficiently related in time and location." Id. at 472.

In concluding that the uncharged conduct evidence could be admitted in King, the court cited the evidentiary similarities in "time, place, age, family relationship of the victims, and form of the sexual acts." Ibid. The same similarities are found in the uncharged conduct at issue here. The uncharged acts here took place in the same time period as the charged crimes -- when the victim was ten. The acts also occurred in a home, in bed while the victim was sleeping next to the defendant. And the nature of the acts was also similar. The judge gave a limiting instruction immediately after the testimony, without objection. In a case that depended greatly on the credibility of the victim, the evidence about the events in Lowell provided corroboration regarding the relationship between the defendant and the victim, and the opportunities of the defendant (the defendant admitted that the victim stayed over at his home during the time in question), and tended to show a pattern or common course of conduct. See Commonwealth v. Torres, 86 Mass. App. Ct. 272, 278-279 (2014). As in King, we cannot say the judge abused his discretion in allowing the testimony. See 387 Mass. at 472.

b. Amendment to indictment. The defendant next argues that the trial judge erred in allowing the prosecution to amend the indictment. We discern no error.

Under Mass.R.Crim.P 4(d), as amended, 378 Mass. 849 (1979), a judge has discretion to allow an amendment "of the form" of an indictment "if such amendment would not prejudice the defendant or the Commonwealth." See Commonwealth v. Suero, 465 Mass. 215, 216 n.1 (2013). The amendment must be to form, rather than substance, meaning in particular that a conviction on the original indictment would have barred prosecution on the amended indictment. See Commonwealth v. Snow, 269 Mass. 598, 606, 609-610 (1930) ; Commonwealth v. Bougas, 59 Mass. App. Ct. 368, 370 (2003). An amendment to an indictment also may not "materially change the work of the grand jury." Commonwealth v. Miranda, 441 Mass. 783, 787 (2004) (quotation omitted).

Here, the amendment was one of form, rather than substance. First, the amendment involved the timing of when the event occurred, and so did not affect an element of the offense; time is not an element of the offense of statutory rape. See Commonwealth v. King, 387 Mass. at 467 ; Commonwealth v. Knap, 412 Mass. 712, 714 (1992). The indictment appropriately indicated the alleged age of the victim at the time of the alleged sexual intercourse, which was all that was necessary. See Commonwealth v. King, supra; Commonwealth v. Knap, supra.

Second, the amendment passes the test articulated in Commonwealth v. Snow, because an acquittal of the original indictment would have barred prosecution on the amended indictment. See 269 Mass. at 609-610. This indicates that the amendment is one of form, in that it did not materially change the crime charged. Ibid. Here if the defendant were acquitted on the original charge, no prosecution could have occurred on the amended indictment as it includes an overlapping period of time. See Commonwealth v. Bougas, 59 Mass. App. Ct. at 370.

Furthermore, the defendant has failed to show prejudice. While he attempts to argue that the expansion of the time period affected his trial strategy, he is unable to articulate concrete ways in which his defense, or his preparation, were materially affected. We note as well that the defendant was on notice of the scope of the allegations. The Commonwealth's statement of the case, submitted in 2011, stated that the alleged abuse occurred until late 2010; and in April of 2014, the defendant and the Commonwealth filed a joint pretrial memorandum that described the alleged abuse occurring until 2010.

Finally, the amendment did not materially change the work of the grand jury. A review of the indictment shows that after the amendment the defendant was still charged with conduct that occurred in the same place, against the same victim, and in the same manner. There was no error. See Commonwealth v. Knight, 437 Mass. 487, 494 (2002).

c. Closing arguments. The defendant also argues that statements made during the Commonwealth's closing argument constituted error requiring a new trial. As the defendant did not object at all during the closing argument, we review for whether there was any error and if so, whether it resulted in a substantial risk of a miscarriage of justice. We consider the closing argument as a whole, noting "the fact that the defendant did not object to the statements at trial as some indication that ... the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Degro, 432 Mass. 319, 325-326 (2000) (citation omitted). See Commonwealth v. Kozec, 399 Mass. 514, 518 & n.8 (1987).

The defendant first argues that the prosecutor improperly vouched for the credibility of the Commonwealth's witnesses. For example, the defendant singles out where the prosecutor suggested that the witnesses provided "honest reasons" for not initially disclosing the alleged abuse. The defendant also points to the following passage:

"There were things that [the mother] saw and things that [the mother] heard that concerned her, and that's why she asked. And the reason that [the victim] said it was happening was not because she was somehow suggested into saying it. She said it was happening because it was happening. Because she told her mother the truth."

Read in context, these remarks did not constitute improper vouching. The prosecutor was responding to arguments from defense counsel, to the effect that the victim's testimony was the result of suggestion by her mother. The prosecutor was arguing from the evidence, and urging the jury to reach those conclusions from the evidence. Arguing forcefully from the evidence is appropriate, and in any event the argument did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Roy, 464 Mass. 818, 833 (2013), citing Commonwealth v. Kozec, 399 Mass. at 516.

For similar reasons we reject the defendant's objection to the prosecutor's statement that the evidence was "overwhelming." In context, the prosecutor was not offering her personal opinion on the strength of the evidence, but was instead marshalling and reciting a list of the defendant's statements that were inculpatory, and that corroborated the victim and her mother. Once again, the prosecutor was arguing appropriately from the evidence. See Commonwealth v. Cabral, 69 Mass. App. Ct. 68, 75-76 (2007). Finally, the defendant argues that it was error for the prosecutor to argue that certain witnesses had no motive to lie, and to use rhetorical questions such as: "Why would [the victim] lie about this defendant ... ?" The defendant claims that these arguments improperly shifted the burden of proof.

Once again, there was no error. The statements were made in response to defense counsel's suggestion in closing that the victim and the victim's mother fabricated testimony. It is appropriate for a prosecutor to argue that a prosecution witness "has no motive to lie," particularly when it is in response to an attack on the witness's credibility. See Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 (2008). Moreover, while prosecutors should exercise caution in using rhetorical questions, here there was nothing in the argument that tended to shift the burden of proof to the defendant. Rather, the rhetorical questions asked the jury to evaluate the motives of the Commonwealth's witnesses, and were directing the jury to a central question in any case like this one, where the victim's credibility was at issue. See Commonwealth v. Ortega, 441 Mass. 170, 181 (2004), citing Commonwealth v. Kozec, 399 Mass. at 521 ("It is not improper to make a factually based argument that, due to the demeanor, disclosed circumstances, and appearance of a witness, a particular witness should be believed or disbelieved").

Judgments affirmed.

      The defendant also argues that the motion to amend the indictment was untimely. However, we note that Mass.R.Crim.P. 4(d) does not contain a time deadline, and there is case law affirming an order allowing a motion to amend an indictment presented on the eve of trial, Commonwealth v. Bougas, 59 Mass. App. Ct. at 370-371, and even during trial, Commonwealth v. Murphy, 415 Mass. 161, 163, 165 (1993).

      "And why did she not tell at first? She gave you a lot of reasons. I would suggest to you, ladies and gentlemen, that they were honest reasons."


text:
    COMMONWEALTH v. Alexander F. ROY, Jr.
    17-P-1433
    Appeals Court of Massachusetts.
    Entered: July 19, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On appeal from his conviction of assault, the defendant argues, under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), that the evidence was insufficient. The parties agree that he was convicted on a threatened battery theory, which requires proof "that the defendant engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an imminent battery, and that the victim perceived the threat." Commonwealth v. Porro, 458 Mass. 526, 530-531 (2010). This requires "objectively menacing conduct." Commonwealth v. Chambers, 57 Mass. App. Ct. 47, 49 (2003). "[A]s a general rule words are not sufficient to constitute an assault." Commonwealth v. Delgado, 367 Mass. 432, 436 (1975) (recognizing exception for words that convey information about defendant's immediate readiness and ability to carry out threat).

There was evidence that the defendant told the complaining witness, "Good, so I can kill you," or, according to the defendant, "I could kick your ass." But the defendant argues, and the Commonwealth concedes, that there was insufficient evidence that he engaged in any objectively menacing conduct, or that his words alone conveyed sufficient information about carrying out the threat. Having independently reviewed the record, we agree. See Commonwealth v. Williams, 19 Mass. App. Ct. 915, 916 (1984) (confession of error does not relieve appellate court of the performance of its appellate functions). "[T]he prosecutor deserves commendation for not attempting to defend the indefensible." Ibid.

Judgment reversed.

Verdict set aside.

Judgment for defendant.

      We therefore need not address the defendant's challenge to his sentence.


text:
    Steven E. LOMBARDO'S CASE.
    17-P-806
    Appeals Court of Massachusetts.
    Entered: July 18, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The employee, Steven E. Lombardo, suffered a work-related injury to his left knee on April 13, 1998. The insurer, Zurich American Insurance Company (Zurich), accepted the case and paid the employee all compensation and benefits then due. The employee returned to work following arthroscopic surgery, and had no issues with his knee until 2008, when he was diagnosed with arthritis, which worsened and eventually required total knee replacement surgery in 2012. He retired just prior to the surgery in 2012 and later filed for further disability benefits with the Department of Industrial Accidents (department).

Although Zurich was the insurer at the time of the April 13, 1998, injury, it alleged that the employee sustained a subsequent work-related aggravation or injury to his knee, and moved to join subsequent insurers to the proceedings. An administrative judge denied the motion. Finding no evidence of any subsequent work-related injury or aggravation, the administrative judge ordered Zurich to pay all compensation and benefits awarded to the employee. The department's reviewing board affirmed the decision of the administrative judge, and Zurich appeals. We affirm the decision of the reviewing board.

1. Standard of review. "The [reviewing] board's decision may be set aside only if it is arbitrary or capricious, an abuse of discretion, or erroneous as a matter of law." Bolduc's Case, 84 Mass. App. Ct. 583, 585 (2013), citing G. L. c. 152, § 12 ; G. L. c. 30A, § 14(7). "The [reviewing] board, as the agency charged with administering the workers' compensation law, is entitled to substantial deference in its reasonable interpretation of the statute." Sikorski's Case, 455 Mass. 477, 480 (2009).

2. Discussion. "Where an employee suffers two or more compensable injuries that are causally related to a resulting incapacity, only one insurer is chargeable for the payment of compensation for the same disability." Pilon's Case, 69 Mass. App. Ct. 167, 169 (2007). " 'The successive insurer rule provides that the insurer covering the risk at the time of the most recent injury that bears causal relation to the disability claimed must pay the entire compensation,' ... so long as the most recent injury contributes to the incapacity to the 'slightest extent.' " Bolduc's Case, 84 Mass. App. Ct. at 585, quoting from Pilon's Case, supra.

Whether the employee suffered a subsequent compensable injury after the April 13, 1998, incident, contributing to his current disability "is essentially a question of fact, on which expert medical opinion is required." Pilon's Case, 69 Mass. App. Ct. at 169 (citations omitted). "Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge." Brommage's Case, 75 Mass. App. Ct. 825, 827 (2009), quoting from Pilon's Case, supra. "The [reviewing] board's decision 'is not to be reversed unless it is lacking in evidentiary support or a different conclusion is required as a matter of law.' " MacDonell's Case, 82 Mass. App. Ct. 196, 201 (2012), quoting from Corraro's Case, 380 Mass. 357, 359 (1980).

The evidence in this case did not require the administrative judge to find a subsequent contributing injury. See Pilon's Case, 69 Mass. App. Ct. at 170. The employee testified in detail regarding the April 13, 1998, incident and his medical history, and consistently maintained that he sustained no further work-related injuries to aggravate or worsen his left knee. Although he described increasing pain beginning in 2008, it applied equally to work and nonwork activities, and the employee attributed it to his April 13, 1998, injury. "There is no requirement that the causal connection be shown by expert testimony alone," Wilson's Case, 89 Mass. App. Ct. 398, 401 (2016), and the administrative judge could credit this testimony as to the cause of the employee's disability. See ibid. (administrative judge acted within his discretion in crediting employee's testimony on causal relationship between incident, injury, and disability).

The employee's testimony, moreover, was corroborated by the impartial medical report prepared by Dr. Gilligan. The report stated that the April 13, 1998, injury was a major cause of the employee's disability -- he had "an element of preexisting osteoarthritis which was exacerbated by the work injury." No subsequent injury was mentioned or cited in the diagnoses, and the only aggravation noted could not "be attributed to the work injury per se." The administrative judge could find the employee's testimony dispositive as to the cause of his disability, notwithstanding any medical evidence to the contrary. See Wilson's Case, 89 Mass. App. Ct. at 400 ("[T]he administrative judge may give decisive weight to the credible testimony of the employee and also may weigh any separate medical evidence"). See also Dalbec's Case, 69 Mass. App. Ct. at 314-316 (credible employee testimony concerning disability outweighed medical examiner's conflicting analysis).

Dr. Gilligan's later testimony, likewise, did not void his initial conclusion. Rather, he maintained that the April 13, 1998, injury was the predominant cause of the employee's knee replacement and disability, adding only that a 1981 injury (previously unknown to Dr. Gilligan) could be a contributing factor. Significantly, Dr. Gilligan specifically stated that nothing had changed his opinion "regarding either the preexisting condition, the diagnoses, or the causation aspect" of his report. The administrative judge was entitled to rely on this testimony, even in the face of inconsistencies, see Brommage's Case, 75 Mass. App. Ct. at 828 (administrative judge's credibility determinations may not be disturbed absent compelling showing), or other contradictory medical evidence. See Pilon's Case, 69 Mass. App. Ct. at 170 ("The administrative judge was at liberty to accept or reject [dissenting medical expert's] opinion").

Given the record before him, the findings of the administrative judge were not "lacking in evidentiary support." MacDonnell's Case, 82 Mass. App. Ct. at 201, quoting from Corraro's Case, 380 Mass. at 359. It was therefore within his discretion to conclude that the employee sustained a single compensable injury on April 13, 1998, while Zurich covered the risk. The administrative judge, as a result, properly denied Zurich's motion to join subsequent insurers and determined Zurich to be liable for all resultant compensation and benefits awarded to the employee. Similarly, the reviewing board did not err in affirming that determination. See Pilon's Case, 69 Mass. App. Ct. at 169.

Decision of reviewing board affirmed.

      The administrative judge issued an amended decision to include the allowance of a motion for enhanced attorney's fees by the employee's counsel.

      We address only Zurich's claim concerning its liability under the successive insurer rule and its related claim concerning Dr. Mark Gilligan's testimony. All additional arguments were waived at oral argument.

      The employee has requested, and is entitled to, an award of attorney's fees and costs with respect to this appeal. See G. L. c. 152, § 12A. The employee may submit a petition for such fees and costs, accompanied by appropriate supporting documentation, within fourteen days of the date of the rescript. Zurich shall have fourteen days thereafter to file any opposition. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).


text:
    Gerald T. MACCURTAIN. v. Leonard Y. NASON & another.
    17-P-1482
    Appeals Court of Massachusetts.
    Entered: July 17, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      The Law Offices of Leonard Y. Nason, P.C.

   The plaintiff, Gerald T. MacCurtain, was formerly employed by defendant Law Offices of Leonard Y. Nason, P.C. (law office), which is controlled by defendant Leonard Y. Nason. An employment agreement obligated the law office to pay the plaintiff a percentage of settlement fees from cases he brought to the firm. The plaintiff was paid accordingly until the defendants refused to pay the fee percentage for settlements generated by the plaintiff but awarded after he had terminated his employment with the law office. In consequence, the plaintiff filed suit for breach of contract. The defendants now appeal from a summary judgment in favor of the plaintiff. We affirm the portion of the judgment against the law office but reverse the portion of the judgment against Nason in his individual capacity.

Discussion. "We review a grant of summary judgment de novo." Deutsche Bank Natl. Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). The issue on appeal is "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

1. Breach of contract. The interpretation of a contract and the determination of ambiguity in its terms are questions of law. See Balles v. Babcock Power Inc., 476 Mass. 565, 571 (2017). As in this case, an "ambiguity is not created simply because a controversy exists between [the] parties." Indus Partners, LLC v. Intelligroup, Inc., 77 Mass. App. Ct. 793, 795 (2010), quoting from Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999). Rather, "we look both to the contested language and to the text of the contract as a whole" to determine whether the contract is ambiguous. Balles, supra at 572. "When the words of a contract are clear, they must be construed in their usual and ordinary sense." Brigade Leveraged Capital Structures Fund Ltd. v. PIMCO Income Strategy Fund, 466 Mass. 368, 374 (2013), quoting from General Convention of the New Jerusalem in the United States of America, Inc. v. MacKenzie, 449 Mass. 832, 835 (2007). In that case, the words "alone determine the meaning of the contract." EventMonitor, Inc. v. Leness, 473 Mass. 540, 549 (2016), quoting from Merrimack Valley Natl. Bank v. Baird, 372 Mass. 721, 723 (1977).

In pertinent part here, the employment agreement provides that the plaintiff "will receive twenty percent of the net settlement of any employee/plaintiff case that [he] bring[s] into the office." There is nothing in this language or elsewhere in the agreement that conditions payment of the fee percentage on the plaintiff's continued employment with the law office. The mere fact that the usual and ordinary sense of the terms "salary" and "benefits" implies they would cease at termination does not change the usual and ordinary sense of the provision at issue here, nor make the agreement hopelessly ambiguous. Contrast Perini Corp. v. Massachusetts Port Authy., 2 Mass. App. Ct. 34, 40 (1974) (dispute arising out of "hopeless ambiguity" in contract language). Accordingly, we need not consider further evidence, see EventMonitor, Inc., 473 Mass. at 549, regardless of the defendants' claims or unexpressed intentions otherwise. See Winchester Gables, Inc. v. Host Marriott Corp., 70 Mass. App. Ct. 585, 593 (2007).

Moreover, even if any ambiguity existed, it would be construed against the defendants as the drafters of the agreement. See Ajemian v. Yahoo!, Inc., 83 Mass. App. Ct. 565, 577 (2013). The defendants could have included terms making payment of the fee percentage contingent on continued employment, but they did not do so. See Merrimack College v. KPMG LLP, 88 Mass. App. Ct. 803, 806-807 (2016). As a result, "[w]e see no reason to add those terms now." Ajemian, supra.

Instead, because the plain meaning of the agreement is clear and unambiguous, it "must be interpreted and applied on its own terms." Central Ceilings, Inc. v. Suffolk Constr. Co., 91 Mass. App. Ct. 231, 235 (2017). There is no dispute that the plaintiff generated the cases from which the fees at issue were paid and he was not compensated in accordance with the agreement. Even viewing these facts most favorably to the defendants, see Molina, 88 Mass. App. Ct. at 177, the plaintiff is entitled under the agreement to the fees awarded by the motion judge.

2. Individual liability. A judge "may enter full summary judgment sua sponte when presented with a motion for partial summary judgment, so long as the parties have 'sufficient notice of his intention to do so, opportunity to submit affidavits, and a right to be heard on the matter.' " Glidden v. Zoning Bd. of Appeals of Nantucket, 77 Mass. App. Ct. 403, 409 n.9 (2010), quoting from Gamache v. Mayor of N. Adams, 17 Mass. App. Ct. 291, 295 (1983). The plaintiff brought this action against both the law office as a professional corporation and Nason individually. The defendants then answered with the affirmative defense that Nason cannot be personally liable under the agreement because he did not act in his individual capacity. Contrast Saggese v. Kelley, 445 Mass. 434, 445 (2005) (waiving defense against individual liability where, "at no time during the trial did the individual defendants attempt to show that they acted in a representative capacity only"). The plaintiff's motion for summary judgment was directed against only the law office -- and not against Nason individually. There was thus no need to address the issue. Indeed, Nason's personal liability was never raised (or even mentioned) in the motion or its supporting memorandum, nor did Nason ever receive notice that the issue should be addressed on summary judgment.

It is fundamental that a judgment against one defendant cannot be bootstrapped to one against another without sufficient reason. Here, however, the motion judge decided the merits of the entire case against both defendants without hearing or considering a defense dispositive to one. See McCrea v. Flaherty, 71 Mass. App. Ct. 637, 646 (2008) (grant of full summary judgment for plaintiff improper because judge failed to consider additional dispositive issues raised by defendants). Given that Nason's individual liability -- of which he had no reason to know was at stake -- hinged entirely on a legal defense unexplored by the parties, we conclude "there was here 'an inadequate basis upon which to enter summary judgment' in favor of the plaintiff[ ]." See id. at 648, quoting from Gamache, 17 Mass. App. Ct. at 296.

Conclusion. We affirm the portion of the judgment against the law office. We reverse the portion of the judgment against Nason in his individual capacity and remand the case for further proceedings.

So ordered.

Affirmed in part; reversed in part and remanded.

      The parties agree the fee percentage was later increased from twenty to twenty-five percent.

      At oral argument, the defendants included an additional claim that "net settlement" was ambiguous. That argument was not raised in the opposition to summary judgment nor was it briefed on appeal; the defendants cannot rely on it now. See Moronta v. Nationstar Mort., LLC, 88 Mass. App. Ct. 621, 626 n.12 (2015) ("We do not address arguments raised for the first time on appeal").

      The defendants did not waive the defense by failing to move to amend the judgment of the trial court. There is no requirement to move pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), prior to appeal to preserve an issue. See Liberty Square Dev. Trust v. Worcester, 441 Mass. 605, 610 (2004) ("When a party's rights on a prior ruling have already been preserved, that party is not required to raise the same issue again in a rule 59 [e] motion").


text:
    COMMONWEALTH v. Alex M. BRITO.
    17-P-1408
    Appeals Court of Massachusetts.
    Entered: July 25, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Alex M. Brito, appeals from a District Court order on his motion for reconsideration, finding that he violated the terms and conditions of his probation by distributing heroin. The defendant contends that the judge erroneously relied on unreliable hearsay and that the evidence was insufficient to prove the violation. We affirm.

1. Sufficiency of the evidence. To revoke probation, the Commonwealth must prove a violation by a preponderance of the evidence. See Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995) ; Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006). On appellate review, "[t]he question is whether the record discloses evidence sufficient to warrant the finding by the judge that [the probationer] had violated the terms of probation." Commonwealth v. Tate, 34 Mass. App. Ct. 446, 449-450 (1993).

Three Boston police officers, James Stoddard, Kevin McElmoyle, and Gino Rodrigues, testified at the probation violation hearing. The judge found "that all three of [the police officers] are credible witnesses." "[W]e do not disturb the judge's credibility determinations as fact finder." Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). Based on the officers' testimony, the judge could have found the following facts.

On January 13, 2017, Stoddard, McElmoyle, and Rodrigues, along with Sergeant Detective Donald Keenan and Detective John Boyle, were monitoring Ramsey Park for signs of drug activity. Two men, Michael Gladunov and Richard Barker, caught Stoddard's attention. Gladunov, whom Stoddard had previously arrested for drug violations, was speaking on a cellular telephone (cell phone) in a "very animated" manner. Stoddard alerted the other officers as he watched the two men; he lost sight of them as they made their way through the streets.

Stoddard found Barker "a few minutes later" standing alone on Williams Street. Barker quickly turned and ran the other way. In the meantime, Rodrigues saw Gladunov walking away from the passenger side of a gray Nissan with Florida license plates, parked with the engine running, in the environs of Shawmut Avenue and Williams Street. Gladunov and Barker then met up again and walked back toward the park.

Keenan, Boyle, and McElmoyle stopped the two men. The officers recovered a bag of heroin from Barker and syringes from both men. Barker said that he gave Gladunov $40 to buy heroin, and that Gladunov had agreed to take him to buy the drugs. After initially denying any wrongdoing, Gladunov said that he bought a bag of heroin for $20 from a man in a car who went by the name "Angel." Gladunov claimed to have swallowed the drugs. His cell phone showed four recent calls with "Angel" at two different phone numbers.

After learning of Gladunov's and Barker's statements and the items seized from them, Stoddard radioed for a marked Boston police cruiser to stop the gray Nissan. Stoddard and Rodrigues approached the vehicle; the defendant was the driver and sole occupant. Rodrigues ordered him out of the car and handcuffed him while Stoddard read him his Miranda rights. Rodrigues searched the defendant and recovered $40 from his hand, along with a folding knife, and two clear plastic bags, one of which had two corners torn off. He also found a cell phone in the center console of the car. Rodrigues dialed one of the numbers for "Angel" shown on Gladunov's phone, and the defendant's phone rang.

During booking, an additional $20 was found on the defendant's person. The defendant told Keenan something to the effect that "he had seen the South Bay and it would be good for Russian," a reference to Gladunov.

The judge found "by a preponderance of the evidence" that the defendant "actually did sell heroin to two heroin users." The evidence presented a strong circumstantial case that Gladunov arranged by telephone to purchase heroin from the defendant for himself and Barker, that the defendant sold them two $20 bags, and that they each took one for personal use. While alternative explanations of the evidence may be possible, the judge was not required to credit those explanations. See Nunez, 446 Mass. at 59-60 ; Tate, 34 Mass. App. Ct. at 449-450. We discern no clear error or abuse of discretion.

2. Hearsay. The defendant further contends that the judge erroneously relied on unreliable hearsay evidence to find him in violation: his statement referring to the "Russian," which he made to Keenan but was introduced through Stoddard's testimony; Barker's statement to Keenan, introduced through both Stoddard and McElmoyle, that he gave Gladunov money to buy heroin; and Gladunov's statement to McElmoyle that he bought a $20 bag of heroin from "Angel."

At a final probation revocation hearing, a probationer must "be given the right to confront and to cross-examine witnesses, unless the judge finds 'good cause' to dispense with these requirements." Commonwealth v. Maggio, 414 Mass. 193, 197 (1993). Reliable hearsay evidence satisfies the "good cause" requirement. See Commonwealth v. Negron, 441 Mass. 685, 691 (2004) ; Commonwealth v. Henderson, 82 Mass. App. Ct. 674, 676 (2012). Indeed, a probation violation may be proved by hearsay alone if the hearsay has substantial indicia of reliability, although "[u]nsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation." Commonwealth v. Durling, 407 Mass. 108, 118 (1990).

"In assessing whether the hearsay evidence is reliable, a hearing judge may consider (1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity." Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). "There is no requirement that hearsay satisfy all the above criteria to be trustworthy and reliable." Commonwealth v. Patton, 458 Mass. 119, 133 (2010).

The out-of-court declarations of the participants in the drug transaction, as offered by the three testifying officers, were substantially reliable. The statements were internally consistent. They were corroborated by the officers' direct observations and by the evidence seized from the participants. Stoddard recorded the statements in his report contemporaneously with the processing of the men at the police station.

Additionally, "[e]vidence which would be admissible under standard evidentiary rules is presumptively reliable." Durling, supra. Gladunov's and Barker's statements were admissible as statements against penal interest. See Mass. G. Evid. § 804(b)(3) (2018). Gladunov admitted to buying heroin, and Barker admitted to giving Gladunov money to purchase heroin. Likewise, the defendant's statement was admissible as an admission of a party opponent. See Mass. G. Evid. § 801(d)(2). The judge did not abuse his discretion in admitting and relying on the out-of-court statements.

Conclusion. We affirm the order entered August 29, 2017.

So ordered.

Affirmed

      In an order entered April 4, 2017, the defendant's probation was revoked upon a finding of probation violation. The defendant appealed from that order, and on the same day, filed a motion for reconsideration. On the defendant's motion for reconsideration, the judge reinstated the defendant's probation, but expressly affirmed his prior finding of a probation violation. The defendant appealed from the order on the motion for reconsideration, entered August 29, 2017, and we consolidated the two appeals. Because the order on the motion for reconsideration incorporates the finding of probation violation in the April 4 order, we need act only on the order concerning the motion for reconsideration.
      The Commonwealth has filed a suggestion of mootness based on the fact that the defendant later stipulated to another violation, his probation was again revoked, and the sentence was imposed again. Because the probation violation may have collateral consequences other than imprisonment, cf. Blake v. Massachusetts Parole Bd., 369 Mass. 701, 704 (1976), we reach the merits.

      The defendant further contends that his statement referring to the "Russian" was totem pole hearsay. But this argument is based on the inadmissibility rather than the reliability of the statement. Because reliable hearsay statements are admissible in probation revocation hearings, the point is immaterial.


text:
    ADOPTION OF VICKY.
    18-P-62
    Appeals Court of Massachusetts.
    Entered: July 25, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The mother appeals from a Juvenile Court decree, issued after a trial that she did not attend, finding her unfit and dispensing with the need for her consent to the adoption of Vicky. On appeal, her sole argument is that the Department of Children and Families (department) failed to make "reasonable efforts ... to prevent or eliminate the need for removal from the home" and "to make it possible for the child to return safely to [her] parent or guardian." G. L. c. 119, § 29C, as appearing in St. 2008, c. 176, § 87. Because the mother did not timely raise this argument in the trial court, it is waived, and we therefore affirm the decree.

Background. We summarize the most pertinent facts found by the trial judge. The mother was fifteen years old and herself in the department's custody when she gave birth to Vicky. At that time, the mother had been on the run for four months from her department placement. The mother appeared withdrawn prior to giving birth and initially would barely speak to department social workers and hospital staff. Based on concerns that the mother had not received regular prenatal care and that she had unstable housing, the department sought and obtained temporary custody of Vicky on an emergency basis. The judge determined that the department's efforts prior to removal were reasonable. At the seventy-two hour hearing, temporary custody in the department was continued; no new reasonable efforts determination was made.

The mother presented as having some developmental delays, but due to her inability or refusal to speak, testing to determine her limitations was not done. She had an individualized education plan while in school, indicating "significant cognitive limitations," and had previously been recommended for psychiatric hospitalization, but a hospital bed was not found for her before she ran from her placement four months before Vicky's birth.

As of two months after Vicky's birth, the department's goal was reunification. The mother, however, generally refused to engage in her service plan tasks, which included learning how to hold Vicky and talking to her during visits; engaging in a parenting evaluation and individual therapy; attending school, a parenting class, and all of her own medical appointments; remaining in her own foster home; and meeting with her various department workers. The mother, who was permitted visits with Vicky "upon her request," had four visits in the three months following Vicky's birth, but did not speak to Vicky at these visits. The mother had no visits during the next ten months (up until the time of trial). The goal for Vicky was changed to adoption, and she was placed in a preadoptive home. The mother went on the run for about two months, entered a placement in the STARR program for about ten days, and then went on the run again and had no further contact with the department in the five months leading up to trial.

After trial, the judge found by clear and convincing evidence that the mother was currently unfit and that termination of her parental rights was in Vicky's best interests. The judge drew a negative inference from the mother's failure to attend the trial. The judge considered the factors listed in G. L. c. 210, § 3(c ), and concluded that termination was supported by factors (iii), (v), (vii), (viii), (x), and (xii). Notwithstanding that the mother raised no challenge to the reasonableness of the department's efforts, the judge concluded:

" 'There is no doubt that [the department] is required to make reasonable efforts to strengthen and encourage the integrity of the family before proceeding with an action designed to sever family ties.' Adoption of Lenore, 55 Mass. App. Ct. 275, 278 (2002). The [d]epartment's obligation to provide services aimed at strengthening the family and reunifying children with their parents is contingent at least in part on parents' willingness to engage in those services. Adoption of Mario, 43 Mass. App. Ct. 767, 774 (1997).
"Mother's inability or refusal to speak to the [d]epartment as well as the multiple instances of her running from [d]epartment placements is indicative of her refusal to work with the [d]epartment to be reunited with [Vicky]."

Discussion. The mother argues that, because the department failed to make reasonable efforts as required by G. L. c. 119, § 29C, and in particular failed to offer services tailored to her difficulty in communicating verbally, her parental rights should not have been terminated. This argument was waived by the mother's failure to raise it before trial. We therefore express no view, nor do we imply any, on whether the department's efforts were reasonable.

"It is well-established that a parent must raise a claim of inadequate services in a timely manner." Adoption of Daisy, 77 Mass. App. Ct. 768, 781 (2010), S.C., 460 Mass. 72 (2011), citing Adoption of Gregory, 434 Mass. 117, 124 (2001). This requirement applies not only to the department's general reasonable efforts obligation, see Adoption of Daisy, 77 Mass. App. Ct. at 781-782, but also to the department's obligation to make reasonable accommodations for parents with disabilities:

"[A] parent must raise a claim of inadequate services in a timely manner so that reasonable accommodations may be made. If a parent believes that the department is not reasonably accommodating a disability, the parent should claim a violation of his rights under either the ADA or other antidiscrimination legislation, either when the parenting plan is adopted, when he receives those services, or shortly thereafter. At that point, the court or the department may address the parent's claim. However, where, as here, a disabled parent fails to make a timely claim that the department is providing inadequate services for his needs, he may not raise noncompliance with the ADA or other antidiscrimination laws for the first time at a termination proceeding."

Adoption of Gregory, 434 Mass. at 124.

A parent may pursue a claim of inadequate services either through an administrative fair hearing or grievance process under department regulations or by commencing a separate action alleging discrimination under the ADA. Ibid. We do not agree with the mother's argument that these remedies would have been too time-consuming to have afforded effective relief in this case (in which thirteen months elapsed between the department's emergency petition and the trial), and accordingly that her failure to pursue them should be excused. Merely initiating either type of claim would have put the department on formal notice that the mother believed the department's services and efforts were inadequate, giving the department an opportunity to review those issues and make any adjustments it deemed advisable.

Moreover, the mother could have raised her claims of inadequate services or lack of reasonable efforts through a motion alleging that the department had abused its discretion filed in the Juvenile Court while the case was pending. See Adoption of Daisy, 77 Mass. App. Ct. at 781. If the judge had determined that the department was not making reasonable efforts, "he had the equitable authority to order the department to take reasonable remedial steps to diminish the adverse consequences of its breach of duty." Care & Protection of Walt, 478 Mass. 212, 228 (2017). Even if such a determination came "too late to order the department to fulfil its duty to make reasonable efforts to eliminate the need for removal, [it need not have been] too late to ensure that the department fulfilled its duty to make it possible for the child to return safely to [her mother] or to attempt to hasten the time when that reunification would become practicable." Id. at 229. The mother did not pursue this course here.

"However, even where the department has failed to meet this obligation, a trial judge must still rule in the child's best interest." Adoption of Ilona, 459 Mass. 53, 61 (2011). "A determination by the court that reasonable efforts were not made shall not preclude the court from making any appropriate order conducive to the child's best interest." Ibid., quoting from G. L. c. 119, § 29C. See Care & Protection of Walt, 478 Mass. at 228.

Undoubtedly, "[a] judge may consider the department's failure to make reasonable efforts in deciding whether a parent's unfitness is merely temporary." Adoption of Ilona, 459 Mass. at 61. But we know of no case concluding that a judge must do so sua sponte, even where the parent has not raised the issue. Here, moreover, the judge concluded that, given the mother's history of running from department placements, she was unlikely to receive and did not appear to want any services to deal with her developmental limitations or otherwise. He further concluded that her limitations were "likely to continue for a prolonged indeterminate period."

Conclusion. Although we do not underestimate the challenging circumstances faced by the mother, it was her obligation, if she wished to parent Vicky, to alert the department -- and if necessary the judge -- to any claimed inadequacy in the department's initial efforts to avoid removal and later efforts to achieve reunification. The mother's failure to do so, and her choice instead to refuse the services offered to her and to absent herself from her own department placement, created a difficult situation for the department, which must act to further the best interests of each child in its custody. The reasonableness of the department's efforts not having been litigated below, we will not determine the issue on appeal. The belated challenge to such efforts furnishes no ground for overturning the decree terminating the mother's parental rights.

Decree affirmed.

      The father's rights were also terminated; he did not appeal.

      After the trial in this case, the decision in Care & Protection of Walt, 478 Mass. 212, 223-225 (2017), emphasized that at the seventy-two hour hearing, if the department's custody is continued, a reasonable efforts determination must be made.

      At trial, there was testimony that the foster parents, one of whom was the mother's cousin, were not willing to enter an open adoption agreement but were willing to allow contact with Vicky in the future if the mother were able to "get her life together and make significant improvements." The judge declined to order posttermination or postadoption contact, instead leaving the matter to the discretion of Vicky's legal custodian. On appeal the mother does not separately challenge that aspect of the decree.

      At trial, the mother's counsel informed the judge that the mother was "AWOL," had been "missing for months," and had "made it very clear ... she is not coming back until she is 18 and she is not going to contact anyone[,] she says."


text:
    LINCOLN POLICE DEPARTMENT v. Richard STRAHAN.
    17-P-942
    Appeals Court of Massachusetts.
    Entered: July 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Richard Strahan, appeals from a decision and order of the Appellate Division of the District Court dismissing his civil motor vehicle infraction appeal. We affirm.

Background. On July 9, 2016, the Lincoln police department cited the defendant for traveling seventy-four miles per hour in a forty-five mile per hour speed zone, in violation of G. L. c. 90, § 17. The defendant filed an appeal from that civil motor vehicle infraction, which, after a hearing before a clerk-magistrate, resulted in a finding of responsible. After exercising his right under G. L. c. 90C, § 3(A)(4), to a de novo hearing before a justice of the District Court, the defendant was again found responsible. The defendant then appealed to the Appellate Division, which on March 2, 2017, issued (and sent to the defendant) a notice informing him that his appeal has been received and that his brief was due by March 16, 2017.

On March 15, 2017, the defendant filed a motion for enlargement of time to file his brief bearing the case caption "Lincoln Pig Department v. Richard Maximus Strahan and the People of Amerika." The Appellate Division entered (and sent to the defendant) an order on March 22, 2017, in which it declined to act on the motion because it could not "take any action on a motion that does not properly state the parties that have an action before this [Appellate] Division." The Appellate Division ordered the defendant to file a revised motion "with a proper caption" on or before March 29, 2017, and warned that the failure to do so would result in the dismissal of the appeal. On April 25, 2017, after the defendant failed to file a revised motion or an appellate brief, the Appellate Division dismissed the appeal.

Discussion. All papers filed with the Appellate Division of the District Court are required to contain a caption bearing the name of the case to which the papers pertain. Rule 20(b) of the Dist./Mun. Cts. Rules for Appellate Division Appeal (1994). A court has the inherent authority to dismiss an action that is not prosecuted diligently. Maciuca v. Papit, 31 Mass. App. Ct. 540, 544 (1991) (Maciuca ). "A litigant's inability to adhere to procedural rules, moreover, frequently and without violation of due process rights results in the denial of motions and dismissals of appeals." Lawrence Sav. Bank v. Garabedian, 49 Mass. App. Ct. 157, 164 (2000).

Here, the Appellate Division did not err in declining to act on a motion that did not comply with Rule 20(b) of the Dist./Mun. Cts. Rules for Appellate Division Appeal. When, despite the Appellate Division's warning, see Friedman v. Globe Newspaper Co., 38 Mass. App. Ct. 923, 924 (1995), the defendant failed to file a revised motion or his appellate brief within the time for filing, dismissal of the appeal was proper.

We additionally reject the defendant's claim under the petition clause of the First Amendment to the United States Constitution. Here, a claim under that clause is analyzed in the same manner as other free speech claims. See Rotkiewicz v. Sadowsky, 431 Mass. 748, 752 n.4 (2000). "To address the exercise of First Amendment speech rights on government property, the United States Supreme Court has developed the public forum doctrine." Roman v. Trustees of Tufts College, 461 Mass. 707, 713 (2012) (Roman ). "[T]he extent to which the Government may limit access [to those seeking to exercise protected speech in a particular forum on government property] depends on whether the forum is public or nonpublic." Ibid., quoting from Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 797 (1985) (Cornelius ).

The courts exist to provide a locus in which disputes can be adjudicated; they do not customarily provide a forum for demonstrations and other speech related purposes. See United States v. Bader, 698 F.2d 553, 555-556 (1st Cir. 1983). As such, courts are considered nonpublic forums. See Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (court room is nonpublic forum for purpose of analyzing free speech clause of First Amendment). "In a nonpublic forum, restrictions need only be 'reasonable and ... not an effort to suppress expression merely because public officials oppose the speaker's view.' " Roman, supra at 714, quoting from Cornelius, supra at 800.

To the extent the defendant asserts that rule 20(b) infringed upon his right to free speech, any such infringement is permissible because the rule is reasonably necessary "to keep the judicial system in efficient operation." Maciuca, supra (quotation omitted). The defendant has not shown that the Appellate Division's action was done merely because public officials oppose his view. To the contrary, the appeal was dismissed because the defendant failed to file a motion that "properly state[d] the parties" or to otherwise prosecute the appeal.

Decision and order of Appellate Division affirmed.

      We note that the defendant has used "Lincoln Pig Department" in the caption on his brief and on other papers filed with this court, and that his brief includes reference to the "Lincoln Pig Department," the "Lincoln Town Pigs," and the "Police Oppressors of Lincoln MA." To the extent that his brief and those papers were accepted for filing in this court, they have no bearing on the merits of this appeal. See Mass.R.A.P. 20, as amended, 456 Mass. 1601 (2010).

      Because it was not raised by the defendant, we decline to consider whether the free speech argument might be analyzed differently under the Massachusetts Declaration of Rights. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See also Walker v. Georgetown Hous. Authy., 424 Mass. 671, 675 (1997).

      The other arguments in the defendant's brief "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    COMMONWEALTH v. Corey BENOIT.
    17-P-1267
    Appeals Court of Massachusetts.
    Entered: July 24, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a bench trial in the District Court, the defendant, Corey Benoit, was convicted of assault and battery on a family or household member. He appeals, claiming that the Commonwealth presented insufficient evidence, specifically by failing to disprove that he acted in self-defense. We affirm.

Background. The judge could have found the following facts. On August 2, 2015, the defendant hosted a party at his home. At approximately 2:00 A.M. , the defendant pushed his girl friend into a wall, causing her to fall to the ground. One witness, Jason Gallop, heard the defendant say, "You bit my lip." Gallop described the defendant's demeanor as agitated. Gallop did not see the victim do anything to the defendant; he saw the defendant push the victim away from him and into the wall. Another witness, Ryan Fogarty, approached the defendant in an effort to calm him down as the defendant was agitated. The defendant showed Gallop his lip, which was cut and bleeding. The defendant struggled with Gallop and Fogarty, and punched holes into walls. It took twenty-five to thirty minutes to subdue the defendant. The victim had bruising and scrapes on her face and jaw as well as a knot on her mid-clavicular. The victim was stabilized with a sling at the scene and transported to the hospital.

Sufficiency of the evidence. We review a claim of sufficiency of the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). To sustain a conviction for assault and battery on a household member, the Commonwealth must prove that the defendant touched the victim without having any right to do so; that the defendant intended to touch the victim; that the touching was either likely to cause bodily harm, or was offensive and was done without her consent; and that they were family or household members. See G. L. c. 265, § 13M ; Commonwealth v. Dustin, 476 Mass. 1003, 1004 (2016). Here, the defendant pushed the victim, his girl friend, into a wall which caused her to fall to the ground. The defendant contests only the sufficiency of the evidence that he did not act in self-defense.

In order to determine whether the defendant is entitled to a self-defense instruction, we view the evidence in the light most favorable to the defendant. See Commonwealth v. McAfee, 430 Mass. 483, 495-496 (1999). If the evidence is sufficient to raise self-defense, the Commonwealth then has the burden to disprove it, beyond a reasonable doubt. See id. at 496. On appeal, we review the evidence in the light most favorable to the Commonwealth to determine whether it met its burden of disproving the defense. See ibid.

Here, viewing the evidence in the light most favorable to the Commonwealth, the Commonwealth proved, beyond a reasonable doubt, that the defendant used more force to defend himself than was reasonably necessary in the circumstances. See Commonwealth v. King, 460 Mass. 80, 83 (2011) ; Criminal Model Jury Instructions for Use in the District Court 9.260 (2009). Two independent witnesses saw the defendant push the victim into the wall. The victim was much smaller than the defendant and could easily have suffered injury from being pushed into a wall. Both witnesses described the defendant as highly agitated, and they struggled with the defendant for a protracted amount of time to subdue him. This evidence permitted the judge to reject the defendant's claim of self-defense and find that he used more force than was necessary. In so finding, the judge was not required to credit the defendant's testimony. See id. at 89. He also is presumed to correctly apply legal principles. See also Commonwealth v. Kearns, 449 Mass. 641, 655 (2007).

The defendant also claims that the judge erred in finding that he retaliated against the victim and that there was insufficient evidence to support that finding. This claim fails as the judge did not find that the defendant retaliated against the victim. To be sure, the judge, prior to closing arguments, read Model Jury Instruction 9.260, supplemental instruction no. 4 under self-defense, and asked the parties to address it in their closing arguments. The defendant argued that he did not retaliate against the victim for the bite, but rather, he acted in self-defense "when [the victim] came back at him." The Commonwealth argued that the defendant had "used more force than necessary under the circumstances" and that "there were other alternatives available to him." Showing retaliation is only one of multiple ways the Commonwealth can disprove a claim of self-defense, and it was not the one relied upon by the Commonwealth in this case. In announcing his finding, the judge stated that the Commonwealth had proved its case beyond a reasonable doubt and that the defendant "did not act in self-defense." Contrary to the defendant's representation, the judge did not find that the defendant acted in retaliation.

Judgment affirmed.

      The victim did not testify at the trial, having invoked her privilege against self-incrimination.

      The victim was five feet one inch tall and weighed 105 pounds. The defendant was over six feet tall and weighed 200 pounds.

      The defendant testified that there was a struggle over a remote control and that the victim bit his lip when he reached to grab for the remote. He testified that the victim was "coming towards" him and that he was "gonna fucking stand his ground," so he pushed her away.

      The Commonwealth must prove one of the following beyond a reasonable doubt: that the defendant (1) did not reasonably believe he was being attacked or immediately about to be attacked, and that his safety was in immediate danger; or (2) did not do everything reasonable in the circumstances to avoid physical combat before resorting to force; or (3) used more force to defend himself than was reasonably necessary in the circumstances. See Commonwealth v. King, 460 Mass. 80, 83 (2011).


text:
    ADOPTION OF UTA.
    17-P-1497
    Appeals Court of Massachusetts.
    Entered: July 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   A Juvenile Court judge terminated the mother's parental rights to the child and declined to order posttermination visitation. On appeal, the mother contends the judge erred by using the mother's inability to afford transportation to visit with the child against her, and in not issuing a posttermination visitation order despite the mother's positive relationship with the child. We affirm.

Discussion. 1. Mother's missed visits. To terminate a parent's rights, a judge must first find that the parent is unfit. Adoption of Ilona, 459 Mass. 53, 59 (2011). We review the judge's determination of parental unfitness for an abuse of discretion or clear error of law, Adoption of Hugo, 428 Mass. 219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), accepting all factual findings absent clear error. Custody of Eleanor, 414 Mass. 795, 802 (1993). One factor the judge must consider when determining unfitness is "the willful failure to visit the child where the child is not in the custody of the parent." G. L. c. 210, § 3(c )(x), amended by St. 1999, c. 3, § 17.

Here, the judge's undisputed findings show that the mother was unable to work with the Department of Children and Families (DCF) to schedule visits with the child. She was difficult to contact and missed visits due to her inattention and other issues. She once called DCF to cancel a visit that had never been scheduled. Another time she claimed that she could not visit because she forgot her identification for boarding a train from New Hampshire to Haverhill. Despite her claims that she could not afford to visit the child, she never requested financial assistance from DCF. Rather, the mother blamed her state of "shock" for her failure to visit the child.

In any event, the mother's unfitness did not rest simply on her lack of visits with the child. The judge also found that the mother has serious unaddressed substance abuse and mental health issues. These findings were also amply supported by the record. The mother's substance abuse resulted in repeated encounters with law enforcement and the mother refused to accept that she had a substance abuse problem, claiming instead that she was properly taking only prescribed medications. Under these circumstances, the judge did not err in finding that the mother's substance abuse issues were not temporary. See Adoption of Carlos, 413 Mass. 339, 350 (1992) (when terminating parental rights, judge must consider whether unfitness is merely temporary). Accordingly, we discern no error.

2. Visitation order. The judge's failure to order posttermination visitation is also amply supported by the record. When considering such an order, a judge must determine whether visitation is in the child's best interests. Adoption of Ilona, supra at 63. An order is in the child's best interests only when the child has " 'a significant, existing bond with the biological parent' whose rights have been terminated." Id. at 63-64, quoting from Adoption of Vito, 431 Mass. 550, 563 (2000).

While the judge did not explicitly find that posttermination visitation would not be in the child's best interests, she did not order any posttermination visits and her subsidiary findings amply support that decision. In the three years leading up to trial, the mother rarely visited the child, and often missed scheduled visits. See Adoption of Saul, 60 Mass. App. Ct. 546, 556 (2004) (posttermination/postadoption visitation order not warranted where parent missed visits and opted for fewer visits than those offered). In addition, at the time of trial the child had been transitioning well to her preadoptive family. Accordingly, there was no error in the judge's decision implicitly declining to order posttermination visitation -- leaving, instead, the question of posttermination visitation to the adoptive parents. See Adoption of Ilona, supra at 63-66.

Decree affirmed.

      In a footnote in its brief, the Department of Children and Families argues that the mother waived the issue of the missed visits. However, we need not consider arguments raised in such a manner. See Mole v. University of Mass., 442 Mass. 582, 603 n.18 (2004).

      At oral argument, the mother's counsel conceded the mother's unfitness but argued that, but for DCF's lack of assistance with transportation, such unfitness would have been temporary.


text:
    COMMONWEALTH v. Omid K. WHITE.
    17-P-1513
    Appeals Court of Massachusetts.
    Entered: July 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a bench trial in the District Court, the defendant, Omid K. White, was convicted of assault and battery as a lesser included charge of assault and battery by means of a firearm. He appeals, claiming that there was insufficient evidence of his identity as the assailant to support his conviction. We affirm.

Background. The judge could have found the following facts. On May 11, 2016, at around 6:00 P.M. , the victim was walking down Plymouth Avenue in Fall River. His aunt, L.C., who was looking out of the window of her apartment, called out to him, and they spoke for a few minutes. The victim continued to walk towards his mother's apartment, which was located diagonally from L.C.'s building. L.C. then saw an individual, whom she knew as the defendant, walking quickly behind the victim with a "big black gun" in his hand. L.C. knew the defendant because he lived in the same building as her sister and she (L.C.) saw him with his girl friend and baby. L.C. testified that the defendant "had a ponytail ... had on sunglasses, a white shirt, and ... dark jeans" and maybe a hat. L.C. grabbed her cellular telephone, put her slippers on, and reached for the doorknob to run downstairs. At that moment, L.C. heard a loud noise, like a gunshot. She ran downstairs and found the victim bleeding from the head and covered in blood. L.C. identified the defendant from a photographic array as the person that assaulted her nephew.

Another witness, J.R., lived in one of the buildings in the complex. She was hanging out a blanket when she heard a loud bang. She saw a "flash and ... two men fighting" over a black object. She knew the victim, and she described the other man as "much shorter than [the victim], and he had ... a beard, mustache." She also stated that, "He was dressed all in red[,] ... had a red baseball cap[,] ... [and h]ad his hair in a braid in the back." J.R. then saw L.C. running toward the victim, yelling, "He's got a gun." J.R. saw that the assailant had a black gun; she watched him as "[h]e turned away and ran out the gate and up the street."

Discussion. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we inquire whether any rational fact finder could have found all of the elements beyond a reasonable doubt. Here the issue is whether the Commonwealth met its burden to prove, beyond a reasonable doubt, that the defendant was the individual who assaulted the victim.

"Proof of the identity of the person who committed the offense may be established in a number of ways and '[i]t is not necessary that any one witness should distinctly swear that the defendant was the [person], if the result of all the testimony, on comparison of all its details and particulars, should identify [the defendant] as the offender.' " Commonwealth v. Blackmer, 77 Mass. App. Ct. 474, 483 (2010), quoting from Commonwealth v. Davila, 17 Mass. App. Ct. 511, 512 (1984). "The Commonwealth is entitled to the reasonable inferences that a [fact finder] may draw from its evidence on identification, ... and the inferences drawn by the jury need only be reasonable and possible, not necessary or inescapable." Blackmer, supra (quotations omitted). Evidence may be primarily or wholly circumstantial. See ibid.

The judge, as fact finder, was able to see the defendant in the court room, to hear the descriptions provided by L.C. and J.R., and to resolve any discrepancies between the accounts. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005) (if "conflicting inferences are possible, it is for the [fact finder] to determine where the truth lies, for the weight and credibility of the evidence is wholly within [the fact finder's] province"). The judge is free to credit some parts of a witness's testimony while not crediting other parts. Indeed, it is clear from the record that the judge assessed all of the testimony, as she explicitly stated, "there was evidence of an assault and battery ... circumstantially, as well as some direct evidence of the identification of the defendant as being the perpetrator in this case." See Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005) ("Whatever weight the judge did give the witness's testimony was exclusively within her province as the fact finder"). Thus, the evidence was sufficient for the judge to find beyond a reasonable doubt that the defendant was in fact the assailant.

Judgment affirmed.

      The defendant was also charged with carrying a loaded firearm without a license and carrying a firearm without a license; the judge ordered the entry of a required finding of not guilty on each. The judge found the defendant not guilty on a charge of discharging a firearm within 500 feet of a building. Prior to trial, the Commonwealth filed a nolle prosequi on a charge of being an armed career criminal with three prior offenses.

      J.R. told a private investigator hired by the defendant that the individual fighting with the victim "didn't seem white. He seemed lighter than [the victim]" and that "he looked to be of ethnic descent."


text:
    R.R. v. M.W.
    16-P-1748
    Appeals Court of Massachusetts.
    Entered: July 24, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The plaintiff, R.R., filed a complaint in the District Court seeking a harassment prevention order under G. L. c. 258E against his mother, defendant M.W. The statutory basis for R.R.'s complaint was that M.W. had harassed him by "committ[ing] [three] or more acts of willful and malicious conduct aimed at [him,] which were committed with the intent to cause fear, intimidation, abuse or damage to property, and did in fact cause fear, intimidation, abuse or damage to property." See G. L. c. 258E, § 1. The first judge issued a temporary ex parte order. At an extension hearing at which M.W. appeared pro se, a different, second judge found that M.W. had committed criminal harassment in violation of G. L. c. 265, § 43A, which is an independent basis for finding harassment under G. L. c. 258E, § 1, and extended the order. M.W. filed a motion for reconsideration and a motion to vacate, which the first judge denied without a hearing. M.W. filed yet another motion to vacate, which the second judge denied after a hearing at which M.W. was represented by counsel. She then appealed.

M.W. argues on appeal that the court violated due process by finding harassment based on a violation of G. L. c. 265, § 43A, when the complaint alleged only that M.W. had harassed R.R. by committing three or more acts of wilful and malicious conduct. Because M.W. did not make this argument at any point below, including at the hearing at which she was represented by counsel, this argument is waived. See Diaz v. Gomez, 82 Mass. App. Ct. 55, 63 (2012) ("[T]hrough failure to raise this claim in the trial court, the defendant has waived any due process objection to the procedure followed by the judge"). So too is her argument that the judge erred by not ordering a mental health examination, since she never moved for such an examination in the trial court.

M.W. also argues that the trial judge's decision fails on the merits. We disagree. A person commits criminal harassment under G. L. c. 265, § 43A, as amended by St. 2010, c. 92, § 10, which was the basis for the judge's finding of harassment under G. L. c. 258E, when he or she "willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress." Three separate wilful and malicious acts are sufficient to satisfy the pattern of conduct or series of acts requirement. See Commonwealth v. Bigelow, 475 Mass. 554, 561 (2016). R.R. described at least three incidents that, in the context of the parties' acrimonious relationship, which included M.W.'s "menacing" statements to R.R. as a child that, if he ever left her, "I'm coming after you," could appropriately be interpreted as such acts, which he testified put him in a "constant state of fear." This includes M.W.'s alleged theft of tens of thousands of dollars from R.R.'s student account, taking out loans in his name, leaving several messages on his dorm room door saying that "[M.W.] is looking for you," inducing R.R.'s fellow college students to convey the same, hiring a private investigator to find where he lived, and entering his building in violation of a no-trespass order.

M.W. argues that the judge should have credited her version of events, according to which her uninvited visit to R.R. shortly before he applied for the order was out of concern for his well-being, and that her electronic communication with R.R. indicates that she committed no wilful and malicious acts. But the judge found R.R. "wholly credible," and we will not disturb this determination on appeal. See Commonwealth v. Werner, 81 Mass. App. Ct. 689, 698 (2012) ("We are in no position to substitute our judgment for that of the judge on credibility questions"). We also disagree with M.W.'s argument that R.R.'s failure to ask her not to contact him implies that no reasonable person in his position would have suffered substantial emotional distress. And there is no requirement in harassment prevention order proceedings that affiants' and witnesses' statements be supported by documentary evidence.

Order dated September 1, 2016, affirmed.

Order denying motion to vacate affirmed.

      M.W. argued in her motion to vacate that "the [p]laintiff's state of mind is issuable as to his current ability to think reasonably" and that "this is a matter for the Family [and] Probate Court to determine the best interest for [p]laintiff [R.R.] as to his current emotional state and need for professional counseling." This does not constitute a motion for a mental examination. See Mass.R.Civ.P. 35(a), 365 Mass. 793 (1974).

      We are also unpersuaded by M.W.'s argument that equity requires a harassment prevention order to be issued by a panel of judges and that the United States Constitution requires them to be issued only after a jury trial.