Opinion
21-P-309
05-10-2022
COMMONWEALTH v. DIANNE L. SENTER.
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 was convicted after a jury trial of violating an abuse prevention order under G. L. c. 209A, § 7. The defendant appeals arguing that (1) the trial judge abused his discretion by allowing the prosecution to introduce hearsay evidence, (2) the prosecutor argued facts not in evidence in her closing argument, and (3) the trial judge erred in denying the defendant's motion for a required finding of not guilty. We affirm.
Discussion.
1. Hearsay.
The defendant first argues that a Commonwealth witness's testimony that the witness saw the defendant's cousin's name written on the visitor sign-in book at the nursing home was inadmissible hearsay. The defendant also contends that the witness's testimony was inadmissible because the prosecution failed to produce the log-in book and authenticate it as a business record.
The defendant timely objected to the evidence on hearsay grounds and therefore we review for prejudicial error. See Commonwealth v. DePina, 476 Mass. 614, 624 (2017). The testimony was not offered for its truth, that is to show the defendant's cousin had in fact signed the book, but instead to show consciousness of guilt on the part of the defendant. The testimony was therefore not hearsay. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 550-551 (2011). We conclude the admission of the testimony that the cousin's name appeared in the sign-in book was not error.
Since the defendant raises for the first time on appeal that the sign-in book needed to be produced and authenticated as a business record for the witness's testimony about what she saw in the book to be admissible, we review this claim of error for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294 (2002) (unpreserved error must create substantial risk of miscarriage of justice in verdict to warrant new trial). Since the evidence permitted the inference that the defendant herself wrote her cousin's name in the sign-in book, the witness's testimony that she had observed the defendant's cousin's name in the book was admissible as a statement of a party opponent. Accordingly, there was no need to introduce the sign-in book and authenticate it as a business record. "When the statement of a party opponent, which is admissible as an exception to the hearsay rule, happens to be contained in a writing, the proponent is not required to produce or account for the original." Commonwealth v. Driscoll, 91 Mass.App.Ct. 474, 481 (2017), citing Mass. G. Evid. §§ 801(d)(2)(A), 1007 (2017). Thus, the Commonwealth was not required to submit the log-in book as a business record. See Driscoll, supra, citing Mass. G. Evid. § 1007.
2. Commonwealth's closing.
The defendant further contends that the Commonwealth argued facts not in evidence when the prosecutor claimed that the handwritten name on the signature line of the return of service of the abuse prevention order was a signature. "In closing argument, counsel may argue from the evidence and may argue fair inferences that might be drawn from the evidence" (citation and quotations omitted). Commonwealth v. Ridge, 455 Mass. 307, 330 (2009) . The return of service on the restraining order, which was an exhibit at the trial, contained the defendant's name written in cursive on the signature line. During the Commonwealth's closing argument, the prosecutor referred to this writing as a signature only once. The defendant timely objected, and therefore we review for prejudicial error. See DePina, 476 Mass. at 624. We determine the prosecutor's comment was not improper because it was a reasonable inference drawn from the evidence at trial. See Ridge, supra at 330. Additionally, the judge's final instructions to the jury included the statement that closing arguments are not evidence. See Commonwealth v. Gonzalez, 465 Mass. 672, 681 (2013) (jurors presumed to follow instructions). Moreover, this "was a vague and fleeting comment, not likely to influence, or even to seize the attention of the jury." Commonwealth v. Johnson, 32 Mass.App.Ct. 989, 992 (1992), quoting Commonwealth v. Cunneen, 389 Mass. 216, 223-224 (1983). There was no error.
3. Motion for required finding.
Finally, the defendant argues that the trial judge erred in denying her motion for a required finding of not guilty because there was insufficient evidence that she was aware of the abuse prevention order and because the order itself was invalid. We review the denial of a motion for a required finding of not guilty in the light most favorable to the Commonwealth to determine whether "[a]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979) . "To establish a violation of G. L. c. 209A, § 7, the Commonwealth must prove that (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) .
The defendant contends that the evidence was insufficient to support her conviction because the evidence failed to show that she had knowledge of the restraining order. Knowledge of the contents of a restraining order can be established by demonstrating the defendant "had actual or constructive knowledge of the order and its terms and conditions." Commonwealth v. Crimmins, 46 Mass.App.Ct. 489, 491 (1999) . Further, "a showing that a defendant was served with a copy of a court order is strong evidence that a defendant had knowledge that certain conduct would not be permitted and could result in a criminal conviction." Commonwealth v. Delaney, 425 Mass. 587, 592 (1997). Here, the prosecutor introduced the return of service on the order as evidence that the defendant had knowledge of the contents of the order. Although the return of service was missing information, it indicated that a copy of the order was served upon the defendant by providing her a copy in hand. We determine that the return of service here provided sufficient evidence that the defendant had knowledge of the conduct that was not permitted. Cf. Crimmins, supra (return of service without notation concerning manner of service sufficient to prove knowledge).
Additionally, the jury heard conflicting testimony about whether the defendant was present at the hearings on whether to issue and extend the order. "If the evidence lends itself to several conflicting interpretations, it is the province of the jury to resolve the discrepancy and determine where the truth lies" (quotation and citation omitted). Commonwealth v. Piatt, 440 Mass. 396, 401 (2003). The jury was entitled to assess the credibility of the witnesses and could have reasonably determined that the defendant was present at the hearing and therefore had notice of the order. See Id. Viewing the evidence in the light most favorable to the Commonwealth, there is sufficient evidence that the defendant had knowledge of the order.
The defendant further argues that the evidence was insufficient on the grounds that the restraining order was invalid. The defendant contends that the failure of the mother to sign the affidavit in support of her request for the order caused the order to be invalid on its face. We are not persuaded. The order here was issued by a judge and contained clear orders directed at the defendant informing her what conduct was not permitted. There was nothing on the face of the order that indicated it was invalid, as such, the defendant was required to comply with the order. "As a general rule the defendant does not have the option to act in violation of a court order and then, in a subsequent criminal proceeding, assert as a defense that the order should not have been issued." Commonwealth v. Marrero, 85 Mass.App.Ct. 911, 912 (2014). See Mohamad v. Kavlakian, 69 Mass.App.Ct. 261, 264 (2007) (even if erroneous, a court order must be obeyed until it is reversed by orderly review).
Judgment affirmed.
Meade, Wolohojian & Lemire, JJ.
The panelists are listed in order of seniority.