Opinion
21-P-1065
06-09-2022
COMMONWEALTH v. GREGG A. HARMER.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from his conviction, after a jury-waived trial, of violating a G. L. c. 209A abuse prevention order (209A order). He argues that the Commonwealth failed to present sufficient evidence that he had knowledge, at the time that he contacted the victim, that the 209A order had been extended. We affirm.
Discussion.
When a defendant challenges the sufficiency of the evidence, we review to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). We keep in mind that "[a]n inference, if not forbidden by some rule of law, need only be reasonable and possible; it need not be necessary or inescapable." Commonwealth v. Beckett, 373 Mass. 329, 341 (1977) .
To establish a violation of a 209A order, the Commonwealth must show, among other things, that "the defendant had knowledge of the order." Commonwealth v. Silva, 431 Mass. 401, 403 (2000). Where there is no evidence of service at the time of the violation, the Commonwealth can still meet its burden by presenting other evidence sufficient to prove "that the defendant had actual knowledge of the terms of the order or was put on sufficient notice to make reasonable inquiry concerning the issuance and terms of the order." Commonwealth v. Welch, 58 Mass.App.Ct. 408, 410 (2003). "Knowledge is a question of fact, and proof is frequently made by inference from the facts and circumstances developed at trial." Commonwealth v. Tavares, 87 Mass.App.Ct. 471, 475 (2015).
Here, the evidence at trial permitted finding the following facts. The victim obtained a 209A order against the defendant on November 17, 2017, which included a "no-contact" provision. The order was extended on December 1, 2017, until December 3, 2018. On April 19, 2018, the order was modified to provide that the "[d]efendant may have in-person contact [and] contact by mail so long as he is incarcerated." However, on May 10, 2018, the order was modified again, at a hearing that the defendant attended by videoconference, to reinstate the full no-contact provision, "without objection by [the] defendant." On December 13, 2018, during a hearing at which the defendant was present, the order, including the no-contact provision, was extended for another year. On December 13, 2019, the court granted the victim a "lifetime" order; the defendant was not present at that hearing.
The order lists the modification date as April 19, 2019, with an expiration date of December 3, 2018; thus, it appears that the writing of the year of the modification as 2019 was a scrivener's error.
The defendant, while still incarcerated, called the victim on December 14, 2019. The defendant was then served with the extended order on December 16, 2019. On January 1, 2020, the defendant sent a letter to the victim's attorney that stated, "I snuck in a call Sat 12-14-19[, ] [k]nowing a R.O. renewal was coming [b]ut not served. So, I slid, 'SAFE'! Crazy not stupid."
A rational trier of fact could have understood the defendant's statements in the letter to mean that the defendant knew at the time he called the victim that the order that had been due to expire on December 13, 2019, had been renewed. His knowledge that the order continued to include a no-contact provision could reasonably be inferred from his use of the phrase "snuck in a call," indicating that he knew he should not be making the call. His knowledge could also be inferred from his use of a baseball analogy -- that he "slid, 'SAFE'" with his telephone call, just before the arrival of the ball (i.e., service of the order) would have put him "out" (i.e., in violation of the order). Unfortunately for the defendant, the analogy was imperfect: what was critical here was not service of the 209A order itself, but his knowledge, even before service, that the order prohibited such calls.
In sum, the evidence was sufficient to permit a rational trier of fact to have found beyond a reasonable doubt that the defendant had actual knowledge of the non-contact provision of the December 13, 2019, order, and violated it.
Judgment affirmed.
The panelists are listed in order of seniority.