Opinion
19-P-306
07-27-2020
COMMONWEALTH v. RALPH C. ROTONDO.
NOTICE: 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
Following a jury trial in the District Court, the defendant was convicted of violating a harassment prevention order, G. L. c. 258E, § 9. On appeal, he argues there was insufficient evidence to prove that he contacted the victim. He further contends that the judge erred by not instructing the jury that he could not be found guilty if his conduct was incidental to lawful activity. We affirm.
The defendant's motion for a required finding of not guilty was allowed with respect to an additional charge, intimidation of a witness, alleged in connection with the same incident. The defendant's argument, to the extent raised, that this charge's dismissal did not correctly enter on the docket should have been addressed to the District Court and is not properly before us.
1. Sufficiency of the evidence. We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant and the victim are neighbors. Since approximately 2013, the defendant and the victim have been engaged in a dispute over the boundary between their properties.
The conflict prompted the victim to seek a harassment prevention order (order) against the defendant. A hearing on the application was held on May 21, 2016, before a judge of the District Court who ultimately issued an order prohibiting the defendant from contacting the victim "either directly or through someone else." The order contained an exception allowing for contact "only via attorney re: boundary dispute." The defendant was present when the judge issued the order and was served with a copy of the order. During the hearing, the judge informed the defendant that all communication with the victim should be made through the victim's attorney, Brian Bowen. In addition, there was evidence that the victim's wife sent the defendant an e-mail informing him that he was to have no further contact with the victim except through Attorney Bowen. The defendant responded via return e-mail that he was familiar with the attorney.
On May 18, 2017, the defendant paid a constable to deliver a "no-trespass" letter addressed to the victim at his home. The letter demanded that the victim cease using a portion of land allegedly owned by the defendant and his girlfriend, Stephanie Diegisser. The no-trespass letter was signed by Diegisser, but the defendant had typed it. The constable delivered the no-trespass letter by leaving it with the victim's wife at their residence and by mailing a copy of it directly to the victim.
In order to convict a defendant of violating a harassment prevention order, the Commonwealth is required to prove "that a court had issued such an order; that the order was in effect on the date that the violation allegedly occurred; that the defendant knew the pertinent terms of the order; and that the defendant violated the order" (quotation omitted). Commonwealth v. Kurko, 95 Mass. App. Ct. 719, 721 (2019). The defendant does not dispute that the victim obtained a harassment prevention order against him on May 21, 2016. Nor does he dispute that the order prevented him from contacting the victim "either directly or through someone else," with only a limited exception allowing for contact through the victim's attorney regarding the boundary dispute. Furthermore, the defendant concedes that he was aware of the order and understood its terms. He claims, however, that the evidence fails to establish that he violated the order because he presented evidence showing that Diegisser wrote the letter that was delivered to the victim's household and that he merely brought the letter to the constable and paid him to deliver it. According to the defendant, he acted as an "errand boy" for Diegisser and, as a result, his motion for a required finding of not guilty should have been allowed. The defendant also argues that Diegisser, as an owner of the abutting property, had a statutory and constitutional right to send the letter, and that the order did not prevent the defendant from assisting Diegisser in exercising those rights.
In evaluating a claim of insufficient evidence, "we must consider and determine whether the evidence, in its light most favorable to the Commonwealth . . . is sufficient . . . to permit the jury to infer the existence of the essential elements of the crime charged" (citation omitted). Latimore, 378 Mass. at 676-677. Viewed in this light, the Commonwealth's evidence was sufficient to prove the defendant's guilt beyond a reasonable doubt. Id. at 677-678. The jury were entitled to disbelieve the defendant's version of events and to conclude instead that he, not Diegisser, intended for the letter to be delivered to the victim. The jury could further conclude that when the defendant arranged for the delivery of the letter, he had full knowledge that the harassment prevention order prevented him from contacting the victim through a third party.
2. The jury instructions. Although the defendant did not request an instruction on incidental contact, he now claims that the judge should have instructed the jury that if they found his conduct was incidental to lawful activity he could not be found guilty of violating the harassment prevention order. Specifically, the defendant claims that the judge should have informed the jury that contacts that are incidental to permitted activities do not violate a harassment prevention order and that the defendant's contact with the victim was not a violation of the order if the victim represented himself. We discern no error.
We are not persuaded by the defendant's claim that although he did not formally request the instruction, he substantially complied with Mass. R. Crim. P. 24 (b) such that the question whether the judge erred by not giving the instruction is preserved. In any event, even if we were to agree with the defendant, he would fare no better in light of our conclusion that the instruction was not warranted.
The defendant testified at trial that he never received a notice from Attorney Bowen confirming his representation of the victim.
In determining whether a particular jury instruction should have been given, "we consider the evidence viewed in the light most favorable to the defendant." Commonwealth v. Benson, 453 Mass. 90, 91 (2009). Here, the evidence at trial, even viewed favorably to the defendant, does not support the defendant's assertion that the delivery of the no-trespass letter to the victim, through the constable, was a lawful activity not prohibited by the order. Contrast Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 494 (2002) (incidental contact instruction should have been given where abuse prevention order did not prohibit defendant from going to mother's house). It matters not, as the defendant contends, that Diegisser had the lawful right to contact the victim because the jury could (and did) reasonably infer that the defendant -- and not Diegisser -- was solely responsible for writing the letter and arranging for its delivery. Nor are we persuaded that the defendant was entitled to an instruction informing the jury that the defendant should be found not guilty if the jury concluded that the defendant believed the victim represented himself. Even if the jury had believed the defendant's testimony that he had not received any confirmation from Attorney Bowen that he was still representing the victim, it does not follow that the victim was representing himself. More importantly, even if the victim no longer had an attorney, the defendant's conduct was direct, not incidental. We therefore conclude that the judge did not err by not instructing the jury on incidental contact.
Judgment affirmed.
By the Court (Vuono, Milkey & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 27, 2020.