Opinion
No. 15–P–1742.
12-08-2016
COMMONWEALTH v. Heath MULHEARN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Heath Mulhearn, appeals from his conviction of violation of an abuse prevention order under G.L. c. 209A, § 7. For the reasons that follow, we affirm.
Background. Following a relationship that began in 2003, the defendant and Christina Logan had a daughter, Susan Marie Logan, who was born in 2004. On September 8, 2008, Christina obtained an abuse prevention order against the defendant. That order was made permanent on September 9, 2009. The order included a "no contact" provision, which required the defendant to stay at least one hundred yards away from Christina and Susan Marie at all times; it also required that the defendant stay away from Christina's workplace and Susan Marie's then-school, the Greendale Head Start program.
Susan Marie is a pseudonym for the minor daughter's name in this matter. Because Christina and Susan Marie share a last name, we refer to them by their first names to avoid confusion.
Around 2:00 P.M. on October 8, 2013, Christina was picking up Susan Marie from her elementary school, the Worcester Arts Magnet School. When she arrived at the school, Christina saw the defendant standing on a nearby street. She did not call the police at the time.
The next day, October 9, 2013, Christina went to pick up Susan Marie from school and, while near the school, again saw the defendant, who this time was standing at another nearby street corner. Christina and Susan Marie got into the car and drove away, passing the defendant. The defendant made no effort to leave upon seeing Christina and Susan Marie. As they drove past him, the defendant stamped his foot, made eye contact with Christina, and said, "Fuck." When she arrived home, Christina called the defendant's probation officer and the Worcester police department. Upon speaking with Christina and confirming the existence of the restraining order, Officer George Lavin coordinated with the Shrewsbury police department to arrest the defendant for violation of the order. Following a jury trial, the defendant was convicted of violating an abuse prevention order under G.L. c. 209A, § 7.
Discussion. 1. Sufficiency of the evidence. The defendant first claims that there was insufficient evidence at trial that he knew that the protective order required him to stay away from Christina and Susan Marie. Instead, he claims that because the protective order required that he remain one hundred yards away from Susan Marie's prior school, he could not have violated the protective order by being present at her current school, because that school was not named in the order.
This argument ignores the fact that the Commonwealth's theory of prosecution, as set forth in the prosecutor's opening, was not based on the defendant's appearance at a specific location. Rather, it was based on his violation of the "no contact" provision of the protective order that required him to stay at least one hundred yards away from Christina and Susan Marie. This "no contact" order required that the defendant stay away from Christina and Susan Marie, wherever they were located, at all times, not just to stay away from them only when they were present at a particular location. See Commonwealth v. Kendrick, 446 Mass. 72, 76 (2006) ("A person subject to a G.L. c. 209A ‘no contact’ order violates it by communicating by any means with a protected party or merely by being near that person"). See also Commonwealth v. Finase, 435 Mass. 310, 314 (2001) ; Commonwealth v. Housen, 83 Mass.App.Ct. 174, 176 (2013). Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), the jury could reasonably find that not only did the defendant appear within one hundred yards of Christina and Susan Marie at the same location on two consecutive days, but on the second day he contacted them when he directed profane language at them and stomped his foot on the ground as they drove past him. Based on this evidence, the jury were warranted in concluding that the defendant knowingly violated the "no contact" provision of the order.
At trial, the Commonwealth provided sufficient evidence for a jury to convict the defendant on the required elements of a violation of an abuse prevention order. Those elements are: "(1) [A] valid G.L. c. 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order ." Commonwealth v. Silva, 431 Mass. 401, 403 (2000). Commonwealth v. Shangkuan, 78 Mass.App.Ct. 827, 829 (2011). The defendant has conceded the validity of the order at the time of the arrest and that he was subject to the "no contact" provisions of the order. Therefore, the Commonwealth presented sufficient evidence for the jury to find that the defendant violated each element necessary for conviction under G.L. c. 209A, § 7.
2. Accidental contact instruction. The defendant also argues, for the first time on appeal, that the judge erred by not providing the jury with an instruction on the defense of accidental contact. Because the defendant did not request an instruction on accidental contact, and did not object to the judge's instructions, we first determine whether the judge's instructions constitute error, and if we find error, "we determine if any of the alleged errors ‘created a substantial risk of a miscarriage of justice." ’ Commonwealth v. Shea, 467 Mass. 788, 791 (2014), quoting from Commonwealth v. Alphas, 430 Mass. 8, 13–14 (1999). See Commonwealth v. Drummond, 76 Mass.App.Ct. 625, 627 (2010).
Prior to trial, defense counsel informed the judge that the defendant was not relying on a theory of accidental contact, but instead alibi—that the defendant was not at the location across from his daughter's school at all. As such, there was no need to instruct the jury on accidental contact. "Counsel may not try a case on one theory of law, and then obtain appellate review on another theory which was not advanced at trial." Commonwealth v. Lazarovich, 410 Mass. 466, 476 (1991). Commonwealth v. Shruhan, 89 Mass.App.Ct. 320, 324 (2016).
Judgment affirmed.