Opinion
13-P-912
05-13-2015
COMMONWEALTH v. JOHN J. GALLANT, JR.
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 before a District Court judge, the defendant was convicted of failure to register as a sex offender, in violation of G. L. c. 6, § 178H(a). He now appeals. We affirm.
Discussion. 1. The defendant contends that the judge abused his discretion by admitting and considering documents and testimony that described the defendant's acts outside the time frame of the second bill of particulars. Relief is warranted only where a bill of particulars does not give adequate notice of the charges faced by the defendant. Commonwealth v. Pillai, 445 Mass. 175, 188 (2005). The defendant argues that he was prejudiced by the variance between the bills of particulars he received and the Commonwealth's theory and evidence presented at trial. When there is such a variance, relief is warranted only when the bill of particulars fails to provide the defendant with "notice to prepare his defense." Ibid., quoting from Commonwealth v. Amirault, 404 Mass. 221, 234 (1989). While the second bill of particulars narrowed the period of time to between January 5, 2012, and February 4, 2012, the initial bill of particulars had directed the defendant to the police report for the time frame of the violation. The defendant was on notice that he could be facing evidence outside of the January 5 to February 4 window, because of the first bill's reference to the police report, which contained allegations that the defendant had only registered at the police station with Detective Prinz once. See Commonwealth v. Pillai, supra (standard for showing prejudice from variance between bill of particulars and trial testimony is high).
2. The defendant argues that the evidence was insufficient to establish that he knowingly failed to register as a sex offender as required by statute. When reviewing a sufficiency of the evidence challenge, the question is 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). We conclude that as the fact finder, the judge could reasonably have found that the defendant knew he was required to register every thirty days in person at the police station and failed to do so. G. L. c. 6, § 178F 1/2.
In arguing that the evidence was insufficient to convict him, the defendant asserts the informal and inconsistent methods used by the Beverly police department require reversal. The defendant testified that Detective Prinz only required him to call instead of going to the police station. He testified that he was told he could "call every thirty days" and that Detective Prinz told him he was "all set" after meeting with him in person. Detective Prinz, however, testified that she told the defendant on three separate occasions that he needed to go to the Beverly police station in person to register every thirty days. Sex Offender Registry Board documents also showed that the defendant had registered in the past. See Commonwealth v. Scipione, 69 Mass. App. Ct. 906, 907 (2007) (previously registering shows knowledge of registration process and duty to register). The judge found that the defendant had been given adequate notice that he needed to go in person to the police station every thirty days to register while he was homeless. He found that Detective Prinz's testimony was "accurate" and "specific." On the other hand, the judge indicated that he had "massive concerns" about the defendant's "crucial credibility problem." Determinations of witness credibility and fact finding lay exclusively with the judge as the trier of fact. Commonwealth v. Coffman, 84 Mass. App. Ct. 33, 37-38 (2013), citing Commonwealth v. Ianello, 401 Mass. 197, 202 (1987). The judge is entitled to believe or disbelieve part or all of the defendant's testimony. See Commonwealth v. Zanetti, 454 Mass. 449, 457 (2009). As the fact finder, the judge's determination that the defendant knowingly failed to register as required by law was reasonable. See Commonwealth v. O'Laughlin, 446 Mass. 188, 203 (2006); Commonwealth v. Coffman, supra at 37.
3. Finally, the defendant argues that he never knowingly failed to register because he never changed his address. However, given that he failed to register at the police station every thirty days as required by the statute, it is irrelevant whether his address changed or not. G. L. c. 6, § 178F 1/2.
Judgment affirmed.
By the Court (Katzmann, Milkey & Agnes, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 13, 2015.