Opinion
14-P-1838
03-28-2016
COMMONWEALTH v. SHERRY A. CRUMBLISS.
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
After a jury-waived trial in the Plymouth District Court, the defendant was convicted of violating a harassment prevention order. She argues on appeal that the evidence was insufficient to sustain the conviction and that the statement which constituted the violation should have been excluded under the marital disqualification statute, G. L. c. 233, § 20. We reverse.
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant's sister-in-law, Rena Crumbliss, obtained a harassment prevention order that prohibited the defendant from harassing her or contacting her "in person, by telephone, in writing or otherwise, either directly or through someone else." The order was in effect on December 19, 2011, when the defendant telephoned her estranged husband, Emil Crumbliss, to arrange visitation for their six year old son. During the argument that ensued over the telephone, the defendant told Emil that if she was not going to see their son on Christmas, she would call the landlord and have him (Emil) evicted. The defendant also threatened to tell Emil's employer that he was stealing tools from work. Finally, the defendant said to her husband, "[T]ell your sister that she can try to get me on that bull shit harassment charge." This statement, the Commonwealth alleged, violated the order that the defendant refrain from harassing and contacting Rena.
We refer to the defendant's sister-in-law and husband by their first names because they share the same last name.
Indeed, the defendant did call Emil's landlord to report that there were unauthorized tenants living in the apartment.
At trial, Rena described her relationship with the defendant on December 19, 2011, as "tumultuous." She explained that she had obtained a harassment prevention order against the defendant in July, 2011. As to communication with the defendant thereafter, Rena testified only that she "hadn't had any contact after that until that day" (emphasis supplied). There was no further evidence clarifying the day and contact to which she referred. Specifically, she said nothing about the telephone message.
Discussion. Sufficiency of the evidence. When reviewing the sufficiency of the evidence, "we 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, 456 Mass. 94, 120 (2010), quoting from Commonwealth v. Latimore, supra at 677. The essential elements of a violation of the harassment prevention order are (1) a judge issued a valid harassment prevention order prohibiting the defendant from contacting Rena directly or indirectly, (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. See Instruction 6.740 of the Criminal Model Jury Instructions for Use in the District Court (2009).
The parties do not dispute that a harassment prevention order prohibiting direct or indirect contact with Rena was in effect at the time of the telephone call and that the defendant was aware of its terms. The issue is whether the evidence was sufficient to establish that the words "tell your sister that she can try to get me on that bull shit harassment charge," even if made by the defendant, were communicated to Rena. The Commonwealth concedes there was no direct evidence that Rena ever received the message. Curiously, Emil was never asked if he relayed the statement to Rena, and Rena was never asked if she received it. The only evidence arguably related to Rena's receipt of the message was her trial testimony that she had no contact with the defendant after the order took effect "until that day." This statement, according to the Commonwealth, supports a reasonable inference that the message was delivered to Rena at the defendant's direction sometime after Emil received it. We are not persuaded. The record is silent as to what "contact" Rena had, when she had it, and with whom. Even under the Latimore standard, this evidence was not of sufficient force to prove the element of illegal contact beyond a reasonable doubt. Latimore, supra at 676.
Because we find that the evidence, including the telephone conversation, was not sufficient to sustain a conviction, we need not address the question of whether the telephone conversation between Emil and Rena should have been excluded on the basis of the marital disqualification statute, G. L. c. 233, § 20.
Judgment reversed.
Finding set aside.
Judgment shall enter for the defendant.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 28, 2016.