Opinion
18-P-1593
10-24-2019
COMMONWEALTH v. SHAN ZHU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, a District Court judge found the defendant, Shan Zhu, guilty of violating a harassment prevention order. The defendant appeals, arguing that he did not violate the order and that two witnesses falsely testified about the contents of the order. We affirm the conviction.
The order, as modified, prohibited the defendant from entering or remaining on the premises of the Lawrence School in Brookline, with certain exceptions. He was permitted to drop off and pick up his children in front of the school, and to pick them up in the lobby in case of inclement weather. He was permitted to enter and to remain on the school grounds for events involving his children. He was required to "check in and check out at the main office at all times during school hours." Finally, in the case of an emergency, he was allowed to "proceed directly to his child's location, if known."
We review the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On the day in question, the defendant accompanied one of his children, who was in kindergarten, to school. The office aide working in the main office saw the defendant with his child, who was crying, and told the defendant that the teacher would come to get the child. The defendant picked up his child and ran down the hall toward the kindergarten class, disappearing from the aide's view. When apprehended by a police officer for violating the harassment prevention order, the defendant said, "It was an emergency. I had to go in."
"To convict a defendant of a violation of a harassment prevention order, the Commonwealth must 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.’ " Commonwealth v. Kurko, 95 Mass. App. Ct. 719, 721 (2019), quoting Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 492 (2002). The Commonwealth submitted evidence sufficient to prove all of these elements. The evidence also established that no special events involving the defendant's children were taking place. The only possible justification the defendant had for entering the school was an emergency. However, the aide testified that the child in question cried every day at school. Moreover, the defendant had no reason to enter the school to proceed to his child's location because he already had his child in his arms. The judge was warranted in concluding that the emergency exception in the harassment prevention order did not apply.
As to the defendant's claim that two witnesses provided false testimony, questions of credibility are exclusively for the trier of fact, in this case the judge, to decide. See Commonwealth v. Montanino, 409 Mass. 500, 504 (1991). The defendant suggests, by improper reference to materials that are not part of the record, that the witnesses misrepresented the terms of the order during their testimony, but nothing in the evidence shows that the judge was misled or misunderstood the order. The defendant offers no legitimate basis to disturb the conviction.
Judgment affirmed.