Opinion
21-P-1136
12-20-2022
COMMONWEALTH v. Eric BROWN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court in December 2015, the defendant was convicted of violating an abuse prevention order. His motions for required findings of not guilty, made at the close of the Commonwealth's case and renewed at the conclusion of all of the evidence, were denied. He was convicted and sentenced to a term of two and one half years in the house of correction, with eighteen months of that sentence to be served and the balance suspended. The defendant filed a timely notice of appeal of his conviction. The appellate proceedings were eventually stayed and, in 2021, the defendant moved unsuccessfully for a new trial. Considering his consolidated appeals, we affirm.
Background. At trial, the Commonwealth introduced evidence that on October 6, 2014, the defendant was subject to an abuse prevention order that, among other provisions, prohibited him from contacting or being within one hundred yards of his then seventeen year old daughter (victim). The prosecution's first witness, the victim's former girlfriend, testified that on that date she was with the victim at the home of another of the victim's friends when the adult occupant of the home returned to the house accompanied by the defendant. The witness testified that the defendant was asking where his daughter was, indicating that "somebody had told him that ... [the victim] was doing drugs," and saying he wanted her to come home. The witness testified that she could not see the defendant from the kitchen where she and the victim were when the defendant arrived, although she heard him speaking.
The witness explained that at some point, she and the victim had been living at the defendant's home, but that he had "kicked both of [them] out."
The witness testified that she hid behind a counter beside where the victim was standing in an effort to avoid the defendant but saw him come into the kitchen. She testified that she heard the defendant say to the victim while both were in the kitchen, "You're coming home, you're coming with me, let's go, let's go, let's go," while the victim repeatedly told him to leave. The witness testified that she ran out of the house unseen by the defendant and called the police, and that the victim remained in the kitchen "as far as [the witness] kn[ew]." The witness also called the victim's mother, after which the witness saw both the victim and the defendant outside. Following the mother's instructions, the witness and the victim got into the witness's car, where they locked the doors and waited for the police. The witness testified that the defendant stood about fifteen feet away from the women in the car and continued to yell from that position; the witness testified that the victim was "frantic." The defendant left before the police arrived.
The victim's mother, the second witness for the prosecution, testified that she spoke to the first witness and her daughter by telephone for about five minutes during the interaction between the defendant and the young women and that during the time she was speaking to her daughter, she heard the defendant yelling "very loud[ly]" at the victim, using her name and telling her, "We're leaving."
The defendant called one witness, the victim. She testified that when the defendant came to the house, "He did not know that I was there, but he was looking out for my best interests, because he loves me." The victim testified that the defendant spoke to the adult occupant of the home about the victim "to make sure that I was okay, and to make sure that there was nothing bad going on at the house," and that she responded by telling him that she loved him, she was "okay," and he did not need to worry. The victim testified that her father was never in the kitchen with her because the first witness "dragg[ed]" her outside while the defendant was elsewhere in the house. She testified that the defendant was surprised by her presence at the house and left as soon as he saw her there.
Discussion. 1. Motion for required finding of not guilty. "When reviewing the denial of a motion for a required finding of not guilty, ‘we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Commonwealth v. Ross, 92 Mass. App. Ct. 377, 378 (2017), quoting Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction need only be reasonable and possible; [they] need not be necessary or inescapable" (quotation omitted). Ross, supra. Because "the defendant moved for a required finding of not guilty at the close of the Commonwealth's case and again at the close of all the evidence, we first ‘consider the state of the evidence at the close of the Commonwealth's case to determine whether the defendant's motion should have been granted at that time.’ " Id. at 379, quoting Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006). "Then, we ‘consider the state of the evidence at the close of all the evidence, to determine whether the Commonwealth's position as to proof deteriorated after it closed its case.’ " Id. We review the denial of the defendant's motions de novo. Commonwealth v. Hamilton, 83 Mass. App. Ct. 406, 410 (2013).
Viewed in the light most favorable to the Commonwealth, the prosecution's evidence was sufficient to establish each of the essential elements of the crime of violation of an abuse prevention order. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (standard of review); Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 235 (2018) ("To establish a violation of G. L. c. 209A, § 7, the Commonwealth must prove that [1] a valid G. L. c. 209A order was issued 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"). Further, under the Latimore standard, the evidence did not support a conclusion that the defendant's contacts were accidental. Contrary to the defendant's assertion that "all of the parties agreed that the Defendant did not know that his daughter ... was present at the third party home," the first witness's testimony permitted the inference that the defendant came to the house in search of the victim. More importantly, the witness's testimony was that finding the victim at the home, the defendant approached her in the kitchen and tried to persuade her to leave with him despite her urging him to leave. Additionally, she testified that when the victim rebuffed the defendant and went outside to join the witness in a locked car, the defendant continued to yell from approximately fifteen feet away. This evidence was unquestionably sufficient to support the defendant's conviction, either for contacting the victim or for coming within 100 yards of her.
To the extent the defendant's brief referred to the contact as "incidental," counsel clarified at oral argument that the defendant does not press the point on appeal.
The witness testified that the defendant said "a lot" to the victim including, as we have noted, telling her, "You're coming home, you're coming with me, let's go, let's go, let's go."
The victim's mother's testimony provided additional support for the last of these points.
When conducting a Latimore analysis "we do not weigh the supporting evidence against conflicting evidence nor do we consider the credibility of the witnesses." Commonwealth v. Semedo, 456 Mass. 1, 8 (2010). Accordingly, that the victim's testimony contradicted certain significant points in the Commonwealth's evidence does not require a different result.
2. Jury instructions. Although framed as a challenge to the judge's failure sua sponte to instruct the jury on "third-party conduct," strict liability, and the state of mind required for a violation of an abuse prevention order, we understand the defendant's actual argument to be that the judge failed to instruct the jury adequately on the defense of accidental contact. This argument fails for the simple reason that the judge's clear and correct instruction on the elements of the offense included an accurate instruction on that theory.
Assuming that it rises to the level of appellate argument, see Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019), the defendant's critique of the judge's failure to give, sua sponte, an instruction that his contact with the victim was the result of the conduct of a third party is not persuasive. The evidence did not "fairly raise[ ] an issue as to the defendant's intent either to direct, or acquiesce in, conduct of a third party." Commonwealth v. Collier, 427 Mass. 385, 389 (1998). Nothing in the evidence suggested any third-party involvement in the defendant's decision to go in search of the victim after she responded verbally to him when he entered the home, or in his continuing to argue with her once he found her there. Cf. id. ("in those comparatively rare situations where a third party is involved in the act that results in the violation, to obtain a conviction under G. L. c. 209A, § 7, the Commonwealth is required to prove beyond a reasonable doubt an intentional act by the defendant which led to the violation of the c. 209A order").
With the parties’ agreement, the judge read both the model jury instruction governing violation of an abuse prevention order, and the supplemental instruction on accidental contact. See Criminal Model Jury Instructions for Use in the District Court, 6.720 (2019). The defendant's argument that the jury should have been instructed that a defendant is not "strictly liable" overlooks the fact that the instruction given addressed that point specifically; the judge told the jury that if the evidence suggested an accidental contact, the burden was on the Commonwealth to prove that the defendant "failed to take reasonable steps to end it."
3. Motion for new trial. Represented by appellate counsel, the defendant moved for a new trial. "[W]e review the denial of a motion for a new trial for ‘a significant error of law or other abuse of discretion.’ " Commonwealth v. Duart, 477 Mass. 630, 634 (2017), cert. denied, 138 S. Ct. 1561 (2018), quoting Commonwealth v. Forte, 469 Mass. 469, 488 (2014).
The defendant did not include a copy of his motion or its supporting memorandum in the record. We have obtained a copy from the trial court's records.
In addition to challenging the sufficiency of the evidence and the judge's failure to give a sua sponte jury instruction -- arguments we have addressed above and need not discuss further -- the defendant's motion raised a claim of ineffective assistance of counsel based on trial counsel's failure to object to certain parts of the first witness's testimony. To prevail on this argument, "the defendant must show [1] that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and [2] that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ " Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). In assessing whether the defendant was prejudiced, "a defendant is entitled to a new trial ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made.’ " Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 439 (2016), quoting Commonwealth v. Millien, 474 Mass. 417, 432 (2016).
The defendant has failed to show that counsel's performance fell below accepted standards; his argument thus fails on the first prong of the Saferian test. The defendant has not persuaded us that the testimony to which he now objects was improperly speculative or otherwise inadmissible. See Commonwealth v. Lima, 29 Mass. App. Ct. 490, 497-498 (1990) (lack of certainty goes to weight, not admissibility). As "[t]he absence of an unmeritorious or futile objection cannot constitute ineffectiveness," Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 678 (2011), the defendant's claim fails.
Judgment affirmed.
Order entered November 5, 2021, denying motion for new trial affirmed.