Opinion
13-P-1642
10-24-2014
COMMONWEALTH v. RAYMOND CHRISTIAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2011, the defendant pleaded guilty to one count of assault and battery and one count of witness intimidation. In August, 2012, the defendant was found to have violated his probation on these convictions by failing to register as a sex offender and failing to submit to DNA testing. Subsequently, a jury found him guilty on the failure to register charge. See G. L. c. 6, § 178H(a)(1). He now appeals from the revocation of his probation, asserting that there was insufficient evidence to support the judge's findings. We affirm.
One of the special conditions of his probation was "to register immediately as sex offender."
In October, 2013, on the defendant's motion, this court stayed and separately docketed the defendant's appeal from his conviction of failure to register (see Appeals Court Dock. 13-P-1708) pending the decisions in Commonwealth v. Arce, 467 Mass. 329 (2014), and Commonwealth v. Cole, 468 Mass. 294 (2014). We therefore address only the probation revocation in this decision.
We review a revocation of probation for an abuse of discretion. Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). Our task is to determine "whether the record discloses sufficient reliable evidence to warrant the finding[]" that the defendant "violated the specified conditions of his probation." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000). "Any conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation." Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976). "The finding of a violation . . . is based only on a preponderance of the evidence, not proof beyond a reasonable doubt." Commonwealth v. King, 71 Mass. App. Ct. 737, 740 (2008), quoting from Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006).
The defendant does not challenge the judge's exercise of discretion in revoking probation, only the sufficiency of the evidence that there was a violation. The judge found by a preponderance of the evidence, Commonwealth v. King, supra at 740, that the defendant violated his probation in two separate respects: (1) failing to register as a sex offender, and (2) failing to submit to DNA testing.
Even a cursory review of the record establishes that the judge's findings are supported. There is no dispute that each of the requirements at issue was a condition of the defendant's probation. The probation department presented evidence through Lynn probation officer William Norcross and introduced six documentary exhibits. The first established the conditions of probation. The remaining exhibits consisted of an investigative report indicating that the defendant had reported both a false residential address and a false place of employment, and, inter alia, that he had not timely submitted a blood sample for DNA testing.
The judge, as she was entitled to do, made her findings based solely on "substantially trustworthy and reliable" hearsay evidence. See Commonwealth v. Bukin, 467 Mass. at 520-522. She then revoked the defendant's probation for four enunciated reasons: the "unlikelihood that the rehabilitative purpose of probation [would] be achieved," the defendant's "record of previous violations," the "seriousness of the offense for which probation was ordered," and the "recommendation of the probation department." The judge's findings were amply supported.
Even assuming, without deciding, that, as the defendant argues, he was not informed that he must submit a DNA sample by "any date certain," the finding that he failed to register as a sex offender was itself sufficient to support the judge's decision to revoke probation.
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Order revoking probation affirmed.
By the Court (Kantrowitz,
Grainger & Hanlon, JJ.),
Clerk Entered: October 24, 2014.