Opinion
No. 12–P–106.
2013-02-20
COMMONWEALTH v. JOSEPH E. STALLINGS.
By the Court (GRASSO, MEADE & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The written finding of a probation violation in this case states that “[t]his finding is based on ... A HEARING and the preponderance of the credible evidence presented, specifically, the following TESTIMONIAL OR DOCUMENTARY EVIDENCE: [exhibit] 1 [through exhibit] 9.” Assuming without deciding that we must evaluate the probationer's challenge to the sufficiency of the evidence by reference only to the listed exhibits, we find sufficient evidence to support the judge's finding that the probationer committed the new offense, assault and battery.
Exhibit 1 was a recording of a hearing pursuant to G.L. c. 209A, § 4, held on July 12, 2011, at which the victim testified. Although the recording was not played at the revocation hearing, the judge at the revocation hearing was the same judge who presided at that restraining order hearing less than a month earlier. Given this short span of time between the restraining order hearing and the probation revocation hearing, we conclude the judge could rely upon his memory of the testimony at that earlier hearing without listening again to the tape. Even apart from the tape recording, there is still sufficient evidence in the record. The judge was entitled to believe the victim's July 11, 2011, affidavit, rather than her subsequent July 26, 2011, affidavit—in which she changed her story, stating she was drunk and in a blackout on July 11, 2011, and that she did not remember anything that happened—and the earlier affidavit alone supplies sufficient evidence to support the judge's determination. Commonwealth v. Janovich, 55 Mass.App.Ct. 42, 50 (2002) (evidence may be sufficient in the face of changed testimony where a judge disbelieves a witness's new version of events).
Order revoking probation and imposing sentence affirmed.