Opinion
23-P-914
08-16-2024
COMMONWEALTH v. SKIPPER CARINO.
Rachel Chunnha for the defendant. L. Patrick Cespedes, Assistant District Attorney, for the Commonwealth.
Heard: February 12, 2024.
Complaint received and sworn to in the Cambridge Division of the District Court Department on July 25, 2022. The case was tried before David E. Frank, J.
Rachel Chunnha for the defendant.
L. Patrick Cespedes, Assistant District Attorney, for the Commonwealth.
Present: Milkey, Henry, & Desmond, JJ.
DESMOND, J.
Following a jury trial in the District Court, the defendant, Skipper Carino, was convicted of violating an abuse prevention order that the victim obtained pursuant to G. L. c. 209A (209A order). On appeal, the defendant challenges the denial of his motion for a required finding of not guilty, asserting that there was insufficient evidence to establish that he violated a provision of the 209A order requiring him to "stay away" from the victim's residence. We affirm.
It was uncontested that the victim qualified as a family or household member as defined in G. L. c. 209A, § 1.
Background.
In March 2022, the victim obtained a 209A order against the defendant which, among other things, required him to "stay away" from the victim's residence. Because the victim lived in a multifamily home, the order specified that the defendant was required to stay away from the "the entire . . . multiple family dwelling in which the [victim's] residence is located" or "wherever else [he] may have reason to know the [victim] may reside." A police officer hand-delivered the defendant a copy of the order, the face of which clearly stated that it was not scheduled to expire until March of 2023.
Around midday on Saturday, July 23, 2022, the defendant came into the police station in the same town as the victim's residence. His presence was noted by Lieutenant Brian Gallagher. Gallagher was aware of the 209A order against the defendant, and "decided to watch where the [defendant's] truck went" because he "had a feeling." When the defendant left the police station, Gallagher got into an unmarked vehicle and began following the defendant's pickup truck. Gallagher watched the defendant drive toward the victim's house before parking his truck in "a parking lot of like a baseball field or a field that kids play at." He then watched the defendant exit his truck and begin walking up a street that ran parallel to the street upon which the victim's residence was located. As the defendant walked toward a private residence whose backyard abutted the victim's backyard (abutting residence), Gallagher stopped the defendant and arrested him. The distance between the victim's house and the abutting residence was approximately 200 feet.
Because Gallagher's testimony is unclear as to whether the defendant drove directly past the victim's house or took a route that was merely in its vicinity, we do not consider it central to our analysis.
Gallagher testified that he had decided to arrest the defendant "because [the defendant] was clearly within [one hundred] yards of the house and in violation of the restraining order" Gallagher's mistaken belief that the defendant was required to remain a specified distance away from the victim's house is immaterial As will be explained infra, from an objective standpoint, the defendant's proximity to the property and deliberate approach nonetheless constituted a violation of the stay away order Cf Commonwealth v Privette, 491 Mass. 501, 524 (2023) (Cypher, J, concurring in part and dissenting in part), quoting 68 Am. Jur. 2d Searches and Seizures § 13 (2020) ("An action is reasonable under the Fourth Amendment regardless of the individual officer's state of mind as long as the circumstances, viewed objectively, justify the action; the officer's subjective motivation is irrelevant").
After he was booked at the police station, the defendant agreed to be interviewed. During the interview, the defendant explained that he "thought that [he] could possibly drop off some money [that he owed to the victim] real quick," noting that he "definitely should have went about it a different way" and knew "it doesn't look good." The defendant stated that his plan was to walk behind the abutting residence "to make sure [the victim] was not home before [he] put the money in [her] mailbox." He was not going to drop off the money if he saw the victim's child or "any sign of anyone home" because he knew he was "not supposed to be going by there." The defendant ultimately concluded that "[i]n hindsight, [he] probably shouldn't have done it."
The defendant was charged with one count of violating an abuse prevention order, G. L. c. 209A, § 7. At trial, the Commonwealth presented testimony from Gallagher and two other officers who responded to the scene of the defendant's arrest, one of whom participated in the defendant's interview at the police station. The Commonwealth also introduced a video recording of the defendant's interview with police and an aerial photograph depicting the proximity between the victim's residence and the abutting residence. During the cross-examination of one of the police witnesses, the defendant introduced a street-level photograph depicting the left side of the abutting residence and a driveway next to it.
The defendant did not testify. At the close of evidence, he moved for a required finding of not guilty, arguing that there was no evidence that he violated the requirement to stay away from the victim's residence because he did not physically intrude on her property or the abutting residence. The motion was denied, and the jury later returned a guilty verdict. The defendant was sentenced to a one-year committed term in the house of correction. He then renewed his motion for a required finding of not guilty. The motion was denied, and this appeal followed.
Discussion.
"In reviewing the sufficiency of the evidence, we consider 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Commonwealth v. Watson, 94 Mass.App.Ct. 244, 247 (2018), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). A finding of a violation of G. L. c. 209A, § 7, requires the Commonwealth to "prove that (1) a valid G. L. c. 209A order was issued by a judge, (2) the order was in effect on the date of the alleged violation, (3) the defendant had knowledge of the order, and (4) the defendant violated the order." Commonwealth v. Telcinord, 94 Mass.App.Ct. 232, 235 (2018). In this case, only the fourth element is in dispute, i.e., whether the defendant violated the provision of the order requiring him to stay away from the victim's residence.
We have previously held that someone can violate an order to stay away from a residence by "tak[ing] actions in close proximity to the property that have a direct impact inside the property," or by positioning oneself "sufficiently proximate" to the property to "be able to abuse or to contact the [victim], in the event that the [victim] were on the property, or entering or leaving it." Watson, 94 Mass.App.Ct. at 248-249. This case, however, offers a more straightforward scenario because the defendant was not only "sufficiently proximate" to the victim's property to be able to "abuse or to contact the [victim]," id. at 249, he admitted to approaching the victim's house for that very purpose. By intentionally positioning himself within a couple of hundred feet of the victim's residence and then moving toward it for the express purpose of assessing whether the victim was at home, the defendant directly contravened the literal meaning of "stay away."
Consistent with this precedent, the jury was instructed that
"an order to stay or remain away from a particular location . . . is violated by entering the property on which the residence is located or taking actions that directly intrude on the residence or being in a position sufficiently near to the property identified in the [209A] order, such that a defendant would be able to abuse or contact the [victim] in the event that the [victim] were on the property or entering or leaving it."See Instruction 6.720 of the Criminal Model Jury Instructions for Use in the District Court (Dec. 2019).
The word "stay," as relevant here, is a verb that means "to stop going forward." Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/stay [https://perma.cc/GG95-F6LN]. On its own, "stay" simply conveys the idea of remaining in place. However, when modified by the adverb "away," the meaning of "stay" becomes more specific, and no longer refers to simply remaining in place, but remaining at a distance or refraining from approaching a particular location or individual. See Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/away [https://perma.cc/H9NP-F7UD] (defining "away" as "from this or that place" or "by a long distance or interval"). As the defendant put it, he was "not supposed to be going by" the victim's residence. This interpretation aligns with the protective purpose of G. L. c. 209A, "to create a safe haven . . ., leaving fewer opportunities for abusive contact" (citation omitted). Commonwealth v. Goldman, 94 Mass.App.Ct. 222, 227 (2018). See Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404 (1945) ("it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning").
Although the dissent characterizes our use of dictionary definitions as "creative" or unconventional, utilizing dictionary definitions to ascertain the requirements of a court order is a standard practice in legal interpretation that ensures clarity and consistency in enforcement. See Garcia v. Steele, 492 Mass. 322, 328 n.6 (2023), quoting Penobscot Nation v. Frey, 3 F.4th 484, 491 (1st Cir. 2021), cert, denied sub nom. United States v. Frey, 142 S.Ct. 1668 (2022), and cert, denied, 142 S.Ct. 1669 (2022), and cases cited ("Dictionaries are useful aids in determining a word's ordinary meaning").
We have repeatedly rejected the suggestion that an order to stay away is unenforceable or ambiguous for failure to specify the distance from which a defendant must stay from a particular property. See, e.g., Telcinord, 94 Mass.App.Ct. at 235-236 ("Our courts have not required this kind of mathematical specificity in order to find a statute enforceable and a defendant's due process rights protected"). Our conclusion that the 209A order in this case unambiguously informed the defendant that the conduct at issue was prohibited is buttressed by the defendant's own admission to police that he knew his actions were wrong. While the dissent posits that it is a "mystery" why trial court judges issuing orders to stay away do not specify a distance, we have previously acknowledged that "[w]e do not think that the preferred practice should be to require the trial judge to determine a specific distance," because there are locations for which an order that does not specify a distance "is more appropriate to provide a safe haven for the protected party." Telcinord, supra at 240. Indeed, the appropriate distance to order a defendant to stay away from a property can vary depending on factors, such as the layout of the property or surrounding neighborhood, and create barriers to enforcement where property boundaries are ambiguous. Focusing on observable behaviors, such as the act of deliberately approaching a property, makes it easier to assess compliance and take appropriate action when violations occur. Specifying a distance may also be problematic to the extent that it could encourage some defendants to lurk just outside the requisite distance.
Applying that definition to the facts of the instant case, we conclude that Gallagher's testimony that the defendant parked several blocks away from the victim's residence before approaching it on foot and eventually being stopped within a couple of hundred feet of the victim's home on property directly abutting it, combined with the defendant's express admission that in doing so, his intention was to ascertain whether the victim was home by surveilling her property from the abutting residence, was sufficient to establish that the defendant was arrested while he was in the process of approaching the victim's residence, and thus violating the order to stay away.' See Telcinord, 94 Mass.App.Ct. at 241 (defendant's conduct violated order to stay away from victim's residence where defendant's "presence on the victim's street near the victim's residence was not an accident, mistake, or otherwise the result of innocent conduct"); Commonwealth v. Habenstreit, 57 Mass.App.Ct. 785, 787 (2003) ("protective order should not be interpreted in a manner to encourage a defendant to keep . . . informed about a protected person's schedule"). Contrast Commonwealth v. O'Shea, 41 Mass.App.Ct. 115, 117 (1996), abrogated in part by Commonwealth v. Delaney, 425 Mass. 587, 597 n.9 (1997), cert, denied, 522 U.S. 1058 (1998) (no violation of order to stay away where, incident to lawful errand, defendant was in vicinity of property he was ordered to stay away from). Cf. Commonwealth v. Kendrick, 446 Mass. 72, 76-77 (2006) (conviction for violating no contact order does not require proof defendant physically crossed specific boundary, but "is reasonably understood to impose an obligation on the defendant to avoid encountering or engaging" with protected party "in any way; to refrain from attendance at places where proximity to, and thus an encounter with, [the protected party] is likely; and promptly to remove himself from such proximity if an encounter arises unexpectedly").
Although mens rea is not required to establish a violation of an order to stay away, Commonwealth v. Delaney, 425 Mass. 587, 596-597 (1997), cert, denied, 522 U.S. 1058 (1998), the defendant's admission that he intended to violate the order provides a lens through which to interpret the circumstances and assess whether he did in fact violate the order. See Commonwealth v. Raymond, 54 Mass.App.Ct. 488, 492 (2002) ("the state of mind of the defendant, apart from his awareness of the terms of the restraining order" is sometimes relevant to analysis of whether order was violated). See also Commonwealth v. Collier, 427 Mass. 385, 388-389 (1998), quoting 1 W. LaFave & A.W. Scott, Jr., Substantive Criminal Law § 3.5(e), at 314 (1986) (noting that "all crimes of affirmative action require something in the way of a mental element -- at least an intention to make the bodily movement which constitutes the act which the crime requires" and that "the jury could have found that . . . the Commonwealth failed to prove that [the defendant] intended that the car take a route that might violate the order") .
By acting as he did, Gallagher not only correctly enforced the terms of the order, but also ensured that the order operated as intended, facilitating timely intervention to safeguard the victim's well-being. See Commonwealth v. Gordon, 87 Mass.App.Ct. 322, 329-330 (2015), quoting Fletcher v. Clinton, 196 F.3d 41, 50 (1st Cir. 1999) ("Domestic violence situations require police to make particularly delicate and difficult judgments quickly"). See also Quilla Q. v. Matt M., 102 Mass.App.Ct. 237, 241 (2023), quoting Iamele v. Asselin, 444 Mass. 734, 740 (2005) (overarching objective of G. L. c. 209A, "is to provide immediate support to victims of domestic violence and their children to 'preserv[e] . . . the fundamental human right to be protected from the devastating impact of family violence'").
The dissent oversimplifies our analysis by asserting that it criminalizes the act of "merely . . . moving toward" a property one has been ordered to stay away from. Post at To the contrary, nothing in this opinion contravenes longstanding precedent that "accidental, mistaken, or unknowing violations" of an order to stay away, standing alone, are insufficient to support a conviction under G. L. c. 209A, § 7. See Raymond, 54 Mass.App.Ct. at 493, citing Commonwealth v. Finase, 435 Mass. 310, 315 (2001). See also Commonwealth v. McKay, 67 Mass.App.Ct. 396, 400 (2006) ("a defendant will not be held criminally liable for violations over which he lacked control"). As set forth above, the evidence here was sufficient to permit a finding that the defendant was within, at a minimum, verbal reach of the victim's home and deliberately approaching the victim's property. By his own admission, he was not merely moving toward the victim's property accidentally, unknowingly, or "incidental to a permitted activity." Raymond, supra at 494. Although the Commonwealth did not frame its argument in these terms below, an appellate court "may decide cases on issues or theories not raised." Matley v. Minkoff, 68 Mass.App.Ct. 48, 52 n.8 (2007), quoting Foley v. Lowell Sun Publ. Co., 404 Mass. 9, 11 (1989) .
The testimony and audiovisual evidence presented to the jury were also sufficient to support a finding that the defendant, by placing himself at the driveway of the abutting residence, had "positioned himself sufficiently proximate to [the victim's residence] that he would be able to abuse or to contact the [victim], in the event that the [victim] were on the property, or entering or leaving it." Watson, 94 Mass.App.Ct. at 249. At trial, one of the police witnesses testified that there was a distance of approximately 200 feet "from the [victim's] house to the sidewalk in front of [the abutting residence]." Based on that testimony, the jury could have reasonably inferred that the distance from the victim's rear property line to the location where the defendant was apprehended was even less than 200 feet. See Goldman, 94 Mass.App.Ct. at 227 (order to stay away "is not limited to the building the address of which is listed on the order, but extends at least to the property line"). The factfinder "could reasonably infer in light of common experience" that, by positioning himself approximately 200 feet from the victim's house, the defendant was close enough to shout at the victim or engage in other forms of abuse. See Latimore, 378 Mass. at 678. See also Commonwealth v. Meola, 95 Mass.App.Ct. 303, 315 (2019) ("A fact finder may draw inferences based on common experience, so long as the inferences are reasonable and possible, even though not necessary") . It is likewise a matter of common knowledge that the defendant could have easily caused something to enter the victim's yard from that distance. Cf. Swett v. Gates, 2023 VT 26, ¶¶ 4, 49 (defendant violated no contact orders by triggering noise alarms and discharging firearm in direction of victim's home). Even if the victim, either from the vantagepoint of her property or while traveling to or from home, had merely observed the defendant standing in front of the abutting residence and surveilling her backyard, it would have undoubtedly caused her to experience significant psychological distress. Cf. Commonwealth v. Tate, 34 Mass.App.Ct. 446, 449-450 (1993) (defendant violated no-contact condition of probation by looking at victim from "the top of the street" close to victim's home while victim was "towards the bottom").
The defendant's ability to verbally harass the victim from approximately 200 feet away may be reasonably inferred from common experience and knowledge about the behavior of sound and its ability to travel a considerable distance in an outdoor setting such as a residential neighborhood.
We are unpersuaded by the defendant's assertion that significant foliage between the two properties may have obstructed his view of the victim's property. To begin with, the defendant's actions and statement to police suggest that he was familiar with the victim's home and the surrounding neighborhood. In view of the evidence of the defendant's familiarity with the neighborhood, and his admission that he had traveled to the abutting residence specifically to surveil the victim's property for signs of whether the victim was home, the jury could reasonably infer that the canopy of the deciduous trees between the properties did not extend all the way to the ground, or at the very least, that there were gaps in the foliage the defendant could see through or that the vegetation was not so dense that it would have prevented the defendant from hearing whether a child was playing in the yard. See Commonwealth v. Gordon, 407 Mass. 340, 343-344 (1990), quoting Commonwealth v. Merola, 405 Mass. 529, 533 (1989) ("[c]ircumstantial evidence is competent to establish guilt beyond a reasonable doubt. . . [and] [a]n inference drawn from circumstantial evidence 'need only be reasonable and possible; it need not be necessary or inescapable'"). Insofar as the defendant points out that no evidence was presented of an established path between the two properties, it is reasonable to infer that the absence of such would not diminish the defendant's capacity to trespass where the existence of the stay away order itself underscores the defendant's willingness to violate boundaries and engage in antisocial behavior. See Smith v. Jones, 75 Mass.App.Ct. 540, 544 (2009) (person seeking protective order under G. L. c. 209A must demonstrate "a reasonable fear of imminent serious physical harm produced by the defendant's words or actions").
In any event, the Commonwealth was not required to show that the defendant had an unobstructed view of the victim's backyard, but only that he was in a position to abuse or contact the victim "in the event that the [victim] were on the property, or entering or leaving it." Watson, 94 Mass.App.Ct. at 249. See Goldman, 94 Mass.App.Ct. at 227 ("a stay-away order applies even when the protected person is not present"). See also G. L. c. 209A, § 1. Therefore, even assuming that the defendant could not have seen the victim from where he stood at the time of his arrest, the evidence that the defendant had put himself in a position from which he could verbally abuse the victim or engage in more extreme conduct was sufficient, standing alone, to support a finding that the defendant had violated the terms of the 209A order. Accordingly, the denial of the defendant's motion for a required finding of not guilty was appropriate.
Judgment affirmed.
MILKEY, J. (dissenting).
When criminal sanctions are at stake, it is not enough for someone to violate the spirit of the law; the letter of the law also matters. There was strong evidence here that the defendant intended to take action that, one way or another, would have violated the terms of the abuse prevention order at issue.The question before us, however, is not whether he intended to violate the order, but whether he actually had done so by the time he was arrested. See United States v. Zhen Zhou Wu, 711 F.3d 1, 18 (1st Cir.), cert, denied sub nom. Yufeng Wei v. United States, 571 U.S. 890 (2013), quoting United States v. Whiteside, 285 F.3d 1345, 1353 (11th Cir. 2002) ("even where the evidence is sufficient to show the necessary mens rea, the government still must always 'meet its burden of proving the actus reus of the offense'"). In my view, the evidence was not sufficient to allow the jury to convict the defendant of having violated the order.
According to the defendant, he was planning on dropping off money to the protected party by leaving it in the mailbox at her home when she was not there, and he was checking for signs of whether she was home (such as children playing in the backyard). Had the protected party been home, the defendant would have been in violation of the order at the location where he was arrested by being within one hundred yards of her.
The same principles apply to State offenses. See Commonwealth v. Lopez, 433 Mass. 722, 725 (2001) ("A fundamental tenet of criminal law is that culpability requires a showing that the prohibited conduct [actus reus] was committed with the concomitant mental state [mens rea] prescribed for the offense").
The record reveals that the police arrested the defendant based on their understanding that the abuse prevention order required him to stay at least one hundred yards away from the protected party's home. That belief was mistaken. In pertinent part, the order did not require him to stay a set distance from the residence; it required him only to stay away "from" that residence.
As the detective in charge explained, he gave the order to arrest the defendant because he had ventured "clearly within [one hundred] yards of the house," and thereby was "in violation of the restraining order."
It is undisputed that the defendant did not cross the boundary to the property, and there was no evidence that he shouted at the residence or otherwise directly "intruded" on it. See Commonwealth v. Watson, 94 Mass.App.Ct. 244, 248 (2018) (describing the only two ways that a stay away order could be violated that were recognized by case law prior to 2018). In a trio of cases published on the same day in 2018, we recognized a third way that someone could violate the "stay away from" requirement: if he had "positioned himself sufficiently proximate to it that he would be able to abuse or to contact the plaintiff, in the event that the plaintiff were on the property, or entering or leaving it." Id. at 249. See Commonwealth v. Goldman, 94 Mass.App.Ct. 222, 227-228 (2018); Commonwealth Telcinord, 94 Mass.App.Ct. 232, 242 (2018) .
For reasons that follow, I do not believe there was sufficient evidence for the jury to find, beyond a reasonable doubt, that the defendant violated the order in this third manner. Before explaining why, however, I must first address the lead ground on which the majority relies, the novel contention that someone intending to violate an order to stay away from a residence commits such a violation merely by moving toward it. Ante at
The majority raised this ground sua sponte. The Commonwealth made no such argument to the jury or to us.
I agree with the majority's approach to begin with the relevant language that governed the defendant's conduct, and I note that the three words at issue -- "stay," "away," and "from" -- are exceptionally ordinary. Under a natural reading of those words, someone who remains 200 feet "from" a designated location cannot be said already to have violated the requirement to stay away from it, regardless of whether he has begun to take steps in that direction. Nor can a defendant's unsurprising acknowledgment that he shouldn't have been doing what he was doing be used as a substitute for proof that he already had violated the actual terms of the order.
Taking such steps might constitute an overt act that rendered a defendant guilty of attempting to violate a stay away order, but the defendant was not charged with such a crime.
While I agree with the majority's looking to discern the meaning of the words at issue, I respectfully disagree with the particulars of its textual analysis, through which it seeks to support its expansive reading by creatively stitching together dictionary definitions of "stay" and "away" (while ignoring "from"). Ante at . But even if the majority's reading were linguistically possible, the defendant would be entitled to the benefit of ambiguity as to what the words "stay away from" mean. That is because of the rule of lenity, the principle that where, as here, an edict that a defendant is accused of violating is ambiguous, the defendant is entitled to the benefit of that ambiguity. See Commonwealth v. Montarvo, 486 Mass. 535, 542 (2020). Although that principle is typically applied in the context of statutory edicts, there is no valid reason that I can discern for not applying it to ambiguous language in an abuse prevention order (the violation of which constitutes a crime). At least one State appellate court has done so. See State v. Guyton, 135 Haw. 372, 380-381 (2015) (rule of lenity requires that ambiguous stay away order be construed in favor of defendant). See also State v. Bright, 147 Haw. 164, 170-171 (2020) (same).
In Guyton, the restraining order required the defendant to stay away from a specified "residence, including yard." Guyton, 135 Haw. at 373. A jury convicted the defendant of violating that provision based on the prosecution's theory that the stay away prohibition extended to the entirety of the property (a large farm) . Id. at 374-375. The Hawaii Supreme Court reversed, relying in part on the rule of lenity. Id. at 380.
Analogy also can be drawn to the law of civil contempt. If the protected party had sought to enforce the abuse prevention order by means of civil contempt, she would have had to prove "clear and convincing evidence of disobedience of a clear and unequivocal command." Birchall, petitioner, 454 Mass. 837, 839 (2009). In my view, such an effort would have been doomed to fail, because there was no "clear and unequivocal command" that prohibited the defendant from standing in front of a house on a different street, some 200 feet away from the protected residence. That someone could be jailed for violating a provision in a manner that could not constitute civil contempt is a perverse result.
I turn then to the majority's alternative ground for affirming, namely that the defendant had "positioned himself sufficiently proximate to it that he would be able to abuse or to contact the plaintiff, in the event that the plaintiff were on the property, or entering or leaving it." Ante at Watson, 94 Mass.App.Ct. at 249. When he was arrested, the defendant was not, as in Watson, standing on the sidewalk just outside the entrance to the home of the person protected by the order, thereby preventing that person from avoiding contact with him when she entered or left the building. Id. at 246, 250. Instead, he was on, or just off, the sidewalk in front of a different house on the next street over, approximately 200 feet from the protected party's residence. Perhaps that placed him close enough to be "in the vicinity of" the residence, but the case law is clear that that would not be enough. See Goldman, 94 Mass.App.Ct. at 226, and cases cited.
The Commonwealth maintains that the defendant's presence 200 feet away nevertheless was close enough, because rational jurors could have inferred that the protected party would have been able to see or hear the defendant had she been in the yard behind her residence. The problem is an absence of proof of this. In fact, the prosecutor made no effort whatsoever to elicit testimony from the Commonwealth's witnesses about whether someone standing in the backyard of the residence could have seen or heard the defendant where he was standing. In effect, the prosecutor treated the alleged infraction just as the police had, that is, as having been established by the defendant's being within one hundred yards of the residence.
I accept that the "residence" specified in the order included the backyard of the multiunit building in which the protected party lived, despite the absence of any direct evidence that she had rights to use that area.
To be sure, there were two photographs admitted in evidence, but nothing in those photographs rescues the Commonwealth's case. One is an aerial shot that appears to reveal a multitude of potential visual barriers located between where the defendant was standing when he was arrested and the backyard of the protected party's residence. These include the house on the next street over in front of which the defendant was arrested, multiple mature trees, two fences, shrubs, and a shed. The other photograph, which was submitted by the defendant during cross-examination of one of the Commonwealth's witnesses, was taken from the arrest location, looking toward the protected party's house. That photograph does not show any sight line into that backyard; rather, the view into it appears to be blocked by the various obstructions shown in the aerial shot. Thus, far from allowing jurors to infer that people in the protected party's backyard could have seen the defendant where he was standing on the next street over, the second photograph -- which, after all, was offered in evidence by the defendant -- reinforces the difficulty of their being able to do so.
The photograph does show a sliver of one upstairs window in the multiunit building in which the protected party lived. This could not provide proof beyond a reasonable doubt that the protected party could have seen the defendant had she been home.
To be clear, I am not asserting that the second photograph supplies definitive proof that it would have been impossible for someone in the protected party's backyard to see or hear the defendant in the location where he had been standing on the next street over. It might be that -- by repositioning -- whoever took the second photograph could have found a specific vantage point to see into the protected party's backyard. But it was not the defendant's burden to disprove that the protected party might have been able to see him had she been home. Rather, to the extent it relied on the standard enunciated in Watson, the Commonwealth had the burden to marshal affirmative proof that the defendant was close enough "to abuse or to contact the [victim]." Watson, 94 Mass.App.Ct. at 249. It simply failed to do so.
The majority seeks to support its position by pointing to the defendant's admission that his intent at the time was to try to discern signs that the protected party was home. Ante at But his having such an intent says nothing about whether he had achieved that desired aim by the time the police arrested him. Indeed, the officer's testimony indicating that the defendant was in the process of moving to a closer vantage point when he was arrested suggests otherwise. Although the Latimore standard is a generous one, it does not sanction making speculative leaps that pile inference upon inference. See Commonwealth v. Fancy, 349 Mass. 196, 200 (1965). "[I]f, upon all the evidence, the question of the guilt of the defendant is left to conjecture or surmise and has no solid foundation in established facts, a verdict of guilty cannot stand." Id., quoting Commonwealth v. O'Brien, 305 Mass. 393, 401 (1940). This is such a case.
Applying the Latimore standard to the evidence the Commonwealth mustered, we are left to conclude at most that there was a possibility that the protected party, had she been home, might have been able to see or hear the defendant where he was arrested, at least if he shouted loudly enough. To my mind, however, convictions for violating an order to stay away "from" particular locations, must be grounded on something more than a chance that defendants crossed a sight line to such locations, or came close enough that they might have been able to reach the locations with a full-throated shout. None of our existing cases goes that far. And taking the Watson standard to such an extreme would violate the rule of lenity discussed above.
The Commonwealth argues that jurors, based on their body of everyday experience, could have found that a human voice can be heard at a distance of 200 feet, at least if the speaker were shouting. The majority accepts that contention, and even goes so far as to suggest that an order to stay away from a residence is violated any time a defendant could have "caused something to enter the [protected party's] yard." Ante at XXXXX.
See Goldman, 94 Mass.App.Ct. at 224 (defendant stood in front of protected party's home and even walked up driveway); Watson, 94 Mass.App.Ct. at 246 ("point on the sidewalk on which the defendant was standing was approximately twenty to twenty-five feet from the front door of the apartment building in which [victim] lived"); Telcinord, 94 Mass.App.Ct. at 241 (defendant followed victim in her car three car lengths back, and then "drove her vehicle onto [victim's street] and parked near and in clear sight of the victim's residence at 3 A.M."); Commonwealth v. Habenstreit, 57 Mass.App.Ct. 785, 786 (2003) (defendant parked about forty feet from victim's workplace while honking horn, shouting obscenities, and making threats heard by coworkers inside).
The majority asserts that its view "aligns with the protective purpose of G. L. c. 209A," to prevent domestic abuse. Ante at . I could not agree more that victims of domestic abuse deserve to have a "safe haven" surrounding their residences. See Commonwealth v. Gordon, 407 Mass. 340, 347 (1990). It hardly follows, however, that interpreting the "stay away from" language in a profligate manner is necessary to achieve that end. There is a ready solution to the problem at hand: relying on trial court judges to include in their abuse prevention orders a specified perimeter around the victim's residence that defendants must "stay away from."
The majority also specifically highlights that the protected party would have been distressed if she had both been home and been able to see the defendant standing where he was arrested. Ante at . This is no doubt true, but any suggestion that the majority's interpretation is necessary to prevent this from happening is not. In fact, in that very scenario, the defendant would have been in violation of the plain language of the existing order, because he would have been within one hundred yards of her.
It remains a mystery to me why trial court judges do not generally follow that course, as we repeatedly have suggested. See, e.g., Habenstreit, 57 Mass.App.Ct. at 787 n.3. The explanation may be as simple as this: the current pre-printed court form does not include a blank space for judges to insert a specified perimeter that a defendant must not cross. I am not aware of any reason why the form cannot and should not be changed. Of course, as the majority observes, ante at, different-sized perimeters may make sense in different settings. So be it; plaintiffs can propose whatever distance makes sense in the circumstances, and defendants can respond. See Telcinord, 94 Mass.App.Ct. at 240-241 ("decision whether to impose a specific distance, if any, should be left to the sound discretion of the trial judge, who is in the best position to determine what the circumstances require to create a safe haven for the protected party").
In sum, I believe the Commonwealth did not present sufficient evidence that at the time the defendant was arrested, he already had violated the order that he stay away from the protected party's house. I dissent because I do not share my colleagues' well-meaning but unnecessary willingness to excuse the deficiencies in the Commonwealth's case.