Opinion
18-P-1582
02-03-2020
COMMONWEALTH v. Ernest PERCE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial in District Court, the judge found the defendant guilty of violating an abuse prevention order issued pursuant to G. L. c. 209A, § 7 (c. 209A order). The defendant appeals, arguing that because the judge found insufficient evidence that he violated the provision of the c. 209A order that required him to stay at least one hundred yards from the victim, and because the application for the criminal complaint (application) alleged that he violated that particular provision, his conviction must be overturned. We affirm.
Assuming arguendo that the application narrowed the complaint, the defendant has not shown that he was prejudiced thereby. He acknowledges that, well in advance of trial, he was provided the supplemental police report (report), which described his continued verbal contact with the victim after he was informed of and understood that the c. 209A order prohibited him from contacting her. The report, in particular, disclosed that the defendant, in addition to physically approaching the victim, shouted at her.
The defendant cites no legal authority (and we are aware of none) that the application for a criminal complaint limits the complaint that issues. In fact, "[w]e have never required that there be an exact match between the evidence presented at trial" and the charging instrument. Commonwealth v. Clayton (No. 1), 63 Mass. App. Ct. 608, 612 (2005).
The report indicated that, after being informed of and understanding the c. 209A order, the defendant shouted toward the victim, "I told you, I'll trade you Apple for the printer, no printer, no Apple!" Apple refers to the victim's and the defendant's son. The defendant continued to shout in the direction of the victim as she stood with the police.
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Moreover, the defendant does not contend that his defense would have been different had the application indicated that his verbal contact violated the c. 209A order. See Commonwealth v. Conefrey, 420 Mass. 508, 511 n.6 (1995) (no prejudice where defendant does not assert that he would have conducted his defense differently had indictment specified dates and times of alleged incidents of indecent assault and battery). See also Commonwealth v. Salone, 26 Mass. App. Ct. 926, 930 (1988) (language in indictment charging assault and battery by means of dangerous weapon that "specif[ied] the particular weapon used [was] superfluous," did not limit theories that could be pursued at trial where defendant had notice, and did not prevent defendant from preparing defense). To the contrary, while the defense centered on the one hundred yard violation, trial counsel also cross-examined the police officers on whether the defendant's words were directed specifically at the victim.
Judgment affirmed.