Opinion
16-P-334
06-02-2017
COMMONWEALTH v. Kevin J. CRONIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of a Superior Court judge revoking his probation. He argues that the evidence was insufficient to support a finding that he violated his probation conditions. We affirm.
Background. The defendant pleaded guilty in 1995 to assault with intent to rape (subsequent offense), assault with intent to rape a child under the age of sixteen, three counts of indecent assault and battery on a person over the age of fourteen, and breaking and entering in the daytime with intent to commit a felony. After completing his prison sentences, he began serving a five-year probationary term in January of 2013. His probation conditions included that he commit no new offenses and have no direct or indirect contact with children under the age of eighteen, with the exception of supervised contact with his nieces and nephews.
In July of 2013, the probation department served the defendant with a surrender notice, the final version of which alleged nine violations of his probation conditions. After five days of evidentiary hearings, the judge informed the parties, at a hearing in March of 2014, that she was finding the defendant in violation, with a written decision to follow, and ordered that he be sent to Bridgewater State Hospital for an evaluation in aid of sentencing. On July 2, 2014, the judge issued a lengthy decision setting forth her findings and rationale. The same day, she sentenced the defendant to serve not less than nine years and not more than life in State prison.
See G. L. c. 123, § 15(e ) ("After a finding of guilty on a criminal charge, and prior to sentencing, the court may order a psychiatric or other clinical examination and, after such examination, it may also order a period of observation in a facility, or at the Bridgewater [S]tate hospital if the court determines that strict security is required and if such person is male. The purpose of such observation or examination shall be to aid the court in sentencing").
On July 3, 2014, the defendant filed a motion to revise and revoke his sentence. Several months later, he filed an appeal of the order revoking his probation. After the appeal was docketed, a second judge, the first judge having retired, held a hearing on the defendant's motion to revise and revoke and then revised his sentence to not less than nine years and not more than thirteen years in State prison.
A single justice of this court allowed the defendant's motion to file a late appeal.
Discussion. We review an order revoking probation for abuse of discretion. See Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). "Any conduct by a person on probation [that] constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation." Commonwealth v. Durling, 407 Mass. 108, 112 (1990), quoting from Rubera v. Commonwealth, 371 Mass. 177, 180–181 (1976). The Commonwealth has the burden of proving a violation by a preponderance of the evidence. See Bukin, 467 Mass. at 520.
Here, the judge was within her discretion to conclude that the defendant committed numerous probation violations between February and October of 2013. Specifically, there is sufficient evidence to support findings of the following violations:
1. Contacts with twelve year old girl. A witness testified that she was at the Registry of Motor Vehicles (RMV) with her boyfriend's sister, who was then twelve years old. The defendant was seated on the same bench and engaged the two of them in conversation for twenty to thirty minutes. According to testimony from the girl's brother, the defendant then went to the church where the girl was an altar server and sought her out and spoke to her on three occasions.
The judge properly determined that these incidents were "more than sufficient basis alone" to find the defendant in violation of his probation. Contrary to the defendant's assertion, the encounter at the RMV was not "fleeting," where he sat next to the girl and engaged her in conversation for twenty to thirty minutes. See Commonwealth v. Kendrick, 446 Mass. 72, 76-77 (2006) ("no contact" probation condition "impose[d] an obligation on the defendant to avoid encountering or engaging children in any way" and "promptly to remove himself ... if an encounter arises unexpectedly"). We also reject the defendant's argument that the testimony of the girl's brother was unreliable hearsay. The judge did not abuse her discretion in relying on the testimony, which was detailed and given under oath. See Commonwealth v. Hill, 52 Mass. App. Ct. 147, 153 (2001).
2. Annoying and accosting. A witness testified that she was working at a laundromat when the defendant asked for her phone number. Once she gave it to him, he made offensive sexual comments, then called her that night and said "he was just getting out of prison" for a crime "involving a young girl." He continued to call her multiple times and sought her out at work on five occasions, prompting her to call the police.
The judge permissibly found, by a preponderance of the evidence, that this conduct constituted annoying and accosting a person of the opposite sex. See Commonwealth v. St. Louis, 473 Mass. 350, 366 (2015) (annoying and accosting requires acts that are "offensive and disorderly to a reasonable person, applying an objective standard"). We disagree with the defendant that his acts were not "disorderly." The judge could have found that his repeated calls and appearances at the woman's workplace, after disclosure of his past crimes, would put a reasonable person in fear of "imminent physical harm." Ibid., quoting from Commonwealth v. Sullivan, 469 Mass. 621, 627 (2014).
3. Uttering false check and larceny. A detective testified that the defendant went to a bank and represented himself to be a customer of the same name. That day, he cashed a check that was returned as counterfeit, then unsuccessfully sought to cash a second check a few days later. The defendant does not contest these facts but claims that his conduct did not constitute uttering or larceny because there was no evidence that he knew the checks were counterfeit or that he intended to steal the bank's money. To the contrary, the judge could have inferred knowledge and intent by the very fact that the defendant tried to cash two checks at a bank where he was not a customer, identifying himself as someone else of the same name. See Commonwealth v. O'Connell, 438 Mass. 658, 664 (2003).
4. Attendance at church where children were present. The judge found that the defendant attended a church service where there were children present. This finding is supported by the testimony of a security guard that children as young as eight years old were at the service. Moreover, after the service, the defendant remained for fifteen to twenty minutes and separately approached and spoke to three young women, who, by their appearance, could have been in their late teens. The judge properly concluded from this evidence that the defendant violated the "no contact" condition of his probation because he failed to remove himself from the situation as promptly as he reasonably could. See Kendrick, 446 Mass. at 77-78.
5. Contact with friend's fourteen year old daughter. The judge found that the defendant went to a friend's house for dinner and had contact with her fourteen year old daughter. The defendant contends that this finding was clearly erroneous because the friend, who initially testified that her daughter was home that night, later recanted and said she was not there, which was confirmed by a second witness. We need not reach this argument because the judge found in the alternative that, "[e]ven assuming [the defendant] did not have contact," "he undoubtedly knew [the friend] had a daughter who was fourteen" and "deliberately and intentionally put[ ] himself in the situation that he might come in contact with her." The defendant does not challenge this alternative finding, which supports the judge's determination that he violated the "no contact" condition of his probation. See ibid.
Disposition. For the above reasons, we conclude that the evidence is sufficient to support the judge's determination that the defendant committed multiple violations of his probation conditions. And given those violations, the judge was within her discretion to revoke the probation. The judge made clear that her decision to revoke was based on the defendant's pattern of "inappropriate interactions" with girls and young women, which she found "of concern in their frequency, even those [that] may not rise to the level of a clear violation of probation." See Commonwealth v. Herrera, 52 Mass. App. Ct. 294, 295 (2001) (judge may consider "reliable evidence of misconduct" not itself constituting probation violation, "where relevant to the judge's discretionary decision whether to revoke probation"). There is ample evidence in the record to support the judge's finding of such a pattern. The judge was thus warranted in concluding that, despite years of sex offender treatment, "the defendant continues to exhibit inappropriate sexual behavior and inappropriate violations of boundaries with females that make him a significant and predictable danger."
We agree with the defendant that the Commonwealth failed to establish that he violated the "no contact" condition by approaching two eighteen year old women at a gas station; that his conduct at the church service constituted stalking or annoying and accosting; or that he committed indecent assault and battery of a woman he took out on a date. The proven violations, however, adequately support the judge's decision to revoke. See Durling, 407 Mass. at 112.
We reject the defendant's assertion that a remand is required for resentencing because "the judge's sentence appears to be based in part on the large number of violations." That sentence was superseded by the one imposed by the second judge after she allowed the defendant's motion to revise and revoke. The defendant has not provided us with a transcript of the hearing on the motion to revise and revoke, nor has he made any argument that the second judge's sentence is impacted by our disposition of this appeal.
Order revoking probation affirmed.