Opinion
16-P-480
03-17-2017
COMMONWEALTH v. Henry D. VASQUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions by a District Court jury of twice violating a harassment prevention order, see G. L. c. 258E, § 9. arguing error in the denial of his motion for required findings of not guilty. We reverse.
Background . On August 5, 2013, Frederick Murphy obtained an ex parte prevention harassment order on behalf of his daughter Mary, which ordered the defendant not to contact Mary or to visit her place of employment, listed as a fast food restaurant. On August 26, 2013, with both Mary and the defendant present, the order was extended for one year. On August 25, 2014, Mary appeared for an extension hearing while the defendant did not. The order was extended to August 25, 2015.
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Based upon the evidence at trial, the jury could have found that, on March 23, 2015, the defendant entered the fast food restaurant where Mary worked. He made eye contact with Mary, who retreated to the back of the restaurant and called the police. The defendant then yelled something at the manager and left. On March 26, 2015, North Adams police Officer Jonathan Boudreau responded to the restaurant and arrested the defendant, who was waiting in the restaurant lobby for food. Mary was not working that day.
Two criminal complaints issued charging the defendant with violating the harassment prevention order. At trial, the judge kept under advisement the defendant's motion for required findings of not guilty based upon a lack of notice. After the jury returned verdicts of guilty on both counts, the judge denied the motion.
Discussion . We review the defendant's claim of error in the denial of his motion for required findings of not guilty to determine "whether, after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Arce , 467 Mass. 329, 333 (2014), citing Commonwealth v. Latimore , 378 Mass. 671, 677 (1979). The only element at issue in this case, where the defendant was charged with violating a harassment prevention order, is whether he knew at the time he committed the violations that the order remained in effect. See Commonwealth v. Henderson , 434 Mass. 155, 163-164 (2001) (setting forth elements of crime of violating abuse prevention order). While there is no dispute that the defendant appeared for the 2013 hearing and therefore knew that the order was in effect until August, 2014, "[t]he Commonwealth offered no evidence that the defendant was either served a copy of the [2014 extension] order, or that he had actual knowledge of its existence and terms." Commonwealth v. Molloy , 44 Mass. App. Ct. 306, 309 (1998). "There was no evidence that anyone made a ‘conscientious and reasonable effort to serve ... the defendant,’ or that some alternative means of service was used to notify him." Ibid ., quoting from Zullo v. Goguen , 423 Mass. 679, 681 (1996). The facts in this case are remarkably similar to those in Molloy , although that case dealt with an order issued pursuant to G. L. c. 209A. There, as here, "[t]he last thing the defendant could be held to have known was that he could have no contact with [Mary or the restaurant] pursuant to a court order that expired on" August 25, 2014. Ibid .
The Commonwealth's argument, that the events of March 23, 2015, were sufficient to place the defendant on notice of the extension, is meritless. There was no evidence that the defendant knew that the police were called on March 23, or that they responded, such that their response would alert the defendant to the fact that the order remained in effect. Making eye contact with Mary and seeing her move immediately to the back of the restaurant could not have provided the defendant with notice that the order had been extended in his absence. The Commonwealth's contention that the defendant had notice because he yelled at the manager relies on pure conjecture. The facts that the defendant appeared at the restaurant on March 23, and yelled at a manager "was not a substitute for proof of actual or constructive knowledge" that the order had been extended, Commonwealth v. Wilson , 90 Mass. App. Ct. 166, 173 (2016) (Sullivan, J., dissenting), and we "reject this evidence as establishing sufficient proof of the defendant's actual knowledge of the order and its terms." Commonwealth v. Welch , 58 Mass. App. Ct. 408, 411 (2003). The Commonwealth fell far short of satisfying the Latimore standard.
Judgments reversed .
Verdicts set aside .