Opinion
15-P-254
02-19-2016
COMMONWEALTH v. KEVIN J. COLPITTS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Kevin J. Colpitts, appeals from his convictions on two counts of violating a harassment prevention order entered for Wesley Miller. See G. L. c. 258E, § 9. The defendant claims that the evidence was insufficient for the judge, sitting without a jury, to find him in violation of the harassment prevention order. We affirm.
The harassment prevention order which was in effect ordered the defendant: (1) not to abuse or harass Miller; (2) not to contact Miller either directly or through someone else; (3) to stay at least 100 yards away from Miller; (4) to remain away from Miller's residence, located at 63 Dunham Street; and (5) to remain away from Miller's workplace. The first conviction stemmed from an incident occurring on October 23, 2012 (October 23rd incident), when the defendant yelled at Miller's girlfriend's niece, Melissa Keene, while she approached Miller's residence on Dunham Street. The second conviction stemmed from an encounter between the defendant and Miller that took place on November 26, 2012 (November 26th incident) at a parking lot after they both left the courthouse. Miller departed fifteen minutes after the defendant and the judge found that the defendant lingered in an attempt to initiate contact.
Discussion. To determine if there was sufficient evidence to uphold a conviction, we must "ask whether, viewing the evidence in a light most favorable to the Commonwealth, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' (emphasis in original)." Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120 (2010), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To establish a violation of G. L. c. 209A, the Commonwealth must prove that (1) a valid G. L. c. 209A order was entered by a judge; (2) the order was in effect on the date of the alleged violation; (3) the defendant had knowledge of the order; and (4) the defendant violated the order. Commonwealth v. Delaney, 425 Mass. 587, 595 (1997).
1. October 23rd incident. The defendant contends that there was insufficient evidence to find that he violated the harassment prevention order because his action was intended for Melissa Keene and did not involve any harassment toward Miller (see note 1, supra); he was not within 100 yards of Miller; and he was "away" from Miller's residence. The defendant also argues that because the stay away order did not indicate a specific distance he must stay away from Miller's residence, but required only that he "stay away from," he could not have known he was within a restricted proximity to Miller's residence. Although we agree the harassment prevention order did not specify the distance the defendant must stay away from Miller's residence, the defendant should have stayed at least 100 yards away from it because he could not be within 100 yards of Miller. Cf. Commonwealth v. O'Shea, 41 Mass. App. Ct. 115, 118 (1996) (G. L. c. 209A "order created a zone of privacy of 100 yards around [victim] wherever she was present"); Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785, 787 (2003) ("An order to stay away from a protected person's workplace puts the workplace itself off limits in order to create a safe haven"). When the defendant passed Miller's residence on the street adjacent to it, and threatened Keene, who was walking to Miller's residence, he violated the harassment prevention order.
The judge found:
"I find that he intended to be there, and was angry at his ex-girlfriend and his girlfriend's new boyfriend. That's why he was there. I find that this is a violation of the stay away from the residence provision, even though there's no specific yardage for that prohibition. I find that it's specific enough. He's got to stay away, and he didn't stay away. Indeed, in his testimony he sort of implicitly admitted that he knew he needed to stay away by claiming anyway that he never went down the street once harassment prevention order number two was issued."
2. November 26th incident. The defendant argues that there was insufficient evidence to sustain his conviction for violating the harassment prevention order on November 26, 2012, because his behavior that day may have been incidental or accidental. However, this was argued to, and rejected by, the judge at trial. We will not disturb the judge's findings of fact because they are not clearly erroneous. See Commonwealth v. Hawkesworth, 405 Mass. 664, 670 (1989).
The judge stated:
"I do find beyond a reasonable doubt that [the defendant] intended to initiate contact with [Miller]. I credit [Miller's] testimony. I do not credit [the defendant's] testimony that he simply went to the bathroom, and that was the reason for the roughly 15-minute delay in getting to his car and heading to Rhode Island. I credit [Miller's] testimony of this circuitous loop that he went on, parking across the street, which again required him, if he were going to continue on home, to walk by his vehicle, which he did."
Judgments affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 19, 2016.