Opinion
14-P-893
06-09-2015
COMMONWEALTH v. JOAO AFONSO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant, Joao Afonso, appeals from his conviction for violation of an abuse prevention order under G. L. c. 209A, § 7. For the reasons that follow, we affirm the conviction.
Background. On May 5, 2012, with the assistance of Malden Police Sergeant Joseph Connelly, Silvena Afonso (victim) obtained an ex parte abuse prevention order (restraining order) against her then husband, the defendant. Sergeant Connelly obtained the defendant's telephone number from the victim, and confirmed with the victim that the defendant spoke English. Sergeant Connelly called the defendant, identified himself as a police officer, and notified the defendant that the victim had taken out a restraining order against him. Sergeant Connelly further informed the defendant that the restraining order was granted by a judge, and that because of the order the defendant should not contact the victim or go near her, nor have anyone else contact the victim or go near her, until the next day in court. Sergeant Connelly testified that the defendant appeared to speak English, and that the defendant indicated that he understood what he had been told.
Though the defendant's first language is Portuguese, the court heard testimony from Sergeant Connelly and the victim that the defendant understood English at the time of this incident.
Thereafter, the defendant contacted Ludmilla Botelho, a member of his church. He informed Botelho that his wife had a restraining order against him, and asked her to help him go to the police station, speak with the police, and return his wife's cell phone. Instead, and despite Botelho's insistence that the defendant could not be on his wife's street because of the restraining order, the defendant drove Botelho to his wife's house to try to persuade her to remove the restraining order. They arrived at the house at the same time as the victim was returning home in her car. When the victim saw the defendant in his car at her house, she continued driving. Despite Botelho's objections, the defendant followed the victim in his car, honked at her in an attempt to make her stop, and eventually blocked her car. Botelho got out of the defendant's car and approached the victim's car in an attempt to calm her down, and the victim called the police. The defendant left before the police arrived.
The defendant was acquitted of the remaining charges of assault and battery and breaking and entering.
Discussion. 1. The defendant argues that the Commonwealth presented insufficient evidence that the defendant knew of the terms of the restraining order, and therefore the Commonwealth did not prove an essential element of the offense beyond a reasonable doubt. See G. L. c. 209A, § 7; Commonwealth v. Silva, 431 Mass. 401, 403 (2000). We disagree.
"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).
We apply the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). Circumstantial evidence alone may be sufficient to support a conviction. See Commonwealth v. Woods, 414 Mass. 343, 354 (1993); Commonwealth v. Platt, 440 Mass. 396, 401 (2003). In such cases, inferences need not be necessary, only "reasonable and possible." Commonwealth v. Martino, 412 Mass. 267, 272 (1992) (citation omitted).
Viewing the evidence in the light most favorable to the Commonwealth, the testimony of Sergeant Connelly was sufficient to warrant the conclusion by the jury that the defendant knew of the terms of the restraining order. See Commonwealth v. Olivo, 369 Mass. 62, 68-69 (1975).
In addition, Sergeant Connelly's testimony is supported by Botelho's testimony that (1) the defendant informed her that the victim had a restraining order against him; and (2) when the defendant drove to the victim's house, Botelho urged the defendant not to go to the victim's street because of the restraining order. The defendant's reliance on Commonwealth v. Welch, 58 Mass. App. Ct. 408 (2003), is misplaced. In Welch, the sole evidence of the defendant's knowledge of the order came from the applicant for the order, who testified that she had one or "maybe" two telephone conversations with the defendant about the order, but could not remember what was said during those conversations, nor when those conversations took place. Id. at 410-411.
2. The defendant also argues that the prosecutor's summation was improper because the prosecutor stated that the jury heard "from Ludmilla Botelho that the defendant knew [that he could not contact the victim]." Because the defendant did not object to the prosecutor's summation during trial, we review to determine whether an improper argument resulted in a substantial risk of a miscarriage of justice. Commonwealth v. Bonds, 445 Mass. 821, 836 (2006). Here, the argument was entirely within the bounds of the law. See Mass. G. Evid. § 1113(b)(2) (2015). It is a fair inference from Botelho's testimony that the defendant knew, or at least that Botelho thought that the defendant knew, that he was required to stay away from the victim.
3. "[W]e evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge's words." Commonwealth v. Trapp, 423 Mass. 356, 361 (1996). The trial judge here twice instructed the jurors on the elements of G. L. c. 209A, § 7, each time using the language set forth in Instruction 6.720, Criminal Model Jury Instructions for Use in the District Court (2011). In Commonwealth v. Reddy, 85 Mass. App. Ct. 104 (2014), we held that the same instruction regarding the knowledge element of G. L. c. 209A, § 7, was proper.
The trial judge instructed the jurors at the end of the trial, and then following a request from the jurors to hear again the elements of G. L. c. 209A, § 7. In his original instruction on the knowledge element of the statute, the judge used the exact language of Instruction 6.720. In his reinstruction, the judge used slightly different language ("Third, that the defendant knew that the pertinent terms of the order was [sic] in effect, either by having received a copy of the order, or by learning, or having learned of it in some other way"). We do not think the jury could have been misled by that language.
Judgment affirmed.
By the Court (Fecteau, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 9, 2015.