Opinion
20-P-688
05-05-2021
COMMONWEALTH v. Edwin DAVILA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a District Court judge's order finding that he had violated his probation by committing a new offense: sending a Facebook "friend request" to the victim of the criminal harassment offense for which he was on probation, thereby violating a G. L. c. 258E order obtained by the victim. The judge revoked his probation and imposed a one-year sentence to the house of correction. On appeal, the defendant argues that (1) there was insufficient evidence that he contacted the victim, (2) the Commonwealth failed to prove that any such contact was not accidental or incidental, and (3) there was insufficient evidence that he knew the G. L. c. 258E order was still in effect at the time of the contact. The Commonwealth concedes this last point but argues that the judge's order should nevertheless be upheld on the basis that the contact also violated a condition of the defendant's probation. We affirm.
The defendant had admitted to sufficient facts and his case was continued without a finding (CWOF) for eighteen months, subject to a so-called Duquette alternative of a guilty finding and one-year committed sentence if he violated the terms of what was effectively his probation. See Commonwealth v. Duquette, 386 Mass. 834, 846-847 (1982), superseded by G. L. c. 278, § 18. See Commonwealth v. Beverly, 485 Mass. 1, 12 (2020) (§ 18 requires "imposition of terms and conditions or probation" when CWOF is entered).
1. Evidence of contact. The defendant argues that there was insufficient evidence to prove, by the requisite preponderance of the evidence, that he was the person who sent the victim the friend request. See Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001). After reviewing the relevant evidence, we are not persuaded.
The defendant casts his argument in part as a challenge to whether the friend request was properly authenticated. We need not delve into the accuracy of this characterization because, in any event, the defendant's focus is on whether there was reliable evidence that he was the same Edwin Davila who sent the friend request depicted in an exhibit at the probation violation hearing. See Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 31 (2020) (evidence at probation violation hearing need not be formally authenticated so long as it bears sufficient indica of reliability).
On June 19, 2019, the victim reported to police that, five days earlier, she had received a friend request from a person named Edwin Davila, in possible violation of the G. L. c. 258E order she had obtained against the defendant. The victim's sister had also received a friend request from an Edwin Davila at about the same time. Both the victim and her sister knew the defendant from having previously worked with him at a bakery. The victim had other siblings who had not worked at that bakery and who had not received friend requests from Edwin Davila. An officer asked the victim if she wanted him to contact the defendant. She did not object, but cautioned the officer that at some point the defendant would claim to speak only Spanish, although he could speak English "just fine."
The officer then called the defendant at a telephone number ending in 8409 that was listed as his number on the G. L. c. 258E order (8409 number). The officer asked to speak to Edwin Davila and a man on the other end of the line stated, "[S]peaking." The officer asked the man if he was the same person who had been involved in a criminal harassment case with the victim, and he answered, "Yes." The defendant does not dispute that he was the person to whom the officer was speaking.
The 8409 number also appeared as the defendant's number on the order of probation conditions he had signed.
The officer stated that he was concerned about a recent friend request that the victim had received from an Edwin Davila. He asked the defendant to come to the police station to discuss the matter. At this point the defendant stated that he did not speak any English, and the conversation ended.
The next day, the victim told the officer that the friend request from Edwin Davila had been deleted soon after she left the police station the day before. A different officer then telephoned the defendant, spoke to him through a translator, and asked him to come to the station to discuss a criminal investigation. The defendant initially agreed, but later he called back, denied that he had contacted the victim, and stated that he would not come to the station to discuss the matter. This officer then sent a records preservation request to Facebook, Inc., for the particular numbered account from which the friend requests had been sent to the victim and her sister. Facebook, Inc., then furnished records showing that as of the date of the friend request, the account was registered to an Edwin Davila whose telephone number was the 8409 number already mentioned.
The defendant claims that the records, covering a twenty-four-hour period during which the friend request was sent to the victim, show that there was no "activity" on the account during that time period. But the defendant points to nothing in the records suggesting that they purport to list all account activity. That they show no log-ins during that time period, hardly shows that the defendant was not already logged in when the time period began.
In sum, there was ample evidence that the defendant sent the friend request. First, the Facebook account from which the request came was tied to the defendant by his telephone number. Second, the requests came to both the victim and her sister, whom the defendant knew from having worked with them at a bakery, but not to any of the victim's other siblings, who had not worked there; this supported an inference that the requests were sent by someone, like the defendant, who knew the victim and her sister but not the other siblings. Third, the request to the victim was deleted almost immediately after a police officer contacted the defendant to convey his concern about that request, permitting an inference that the defendant was the one who deleted it. Finally, once the officer conveyed that concern, the defendant claimed that he could not speak English and the conversation ended, even though the victim had said that the defendant could speak English "just fine." This suggested consciousness of guilt, as did the timing of the deletion of the request. All of this evidence taken together supported the judge's finding by a preponderance of the evidence that the defendant sent the request to the victim.
2. Accidental or incidental contact. The defendant claims that, even if he contacted the victim by sending the friend request, the Commonwealth failed to prove that such contact was not accidental or incidental to a lawful activity. See Commonwealth v. Shea, 467 Mass. 788, 794 (788). The defendant speculates that, while scrolling on his cell phone, he could have inadvertently "clicked" on a Facebook "friend suggestion." He points to evidence that, sometime after the victim received the friend request, he "blocked" her on Facebook, which he says constituted a reasonable step to end the contact. See id. (where evidence suggests that contact was accidental, Commonwealth must prove that defendant did not take reasonable steps to end it).
The judge observed that sending a friend request, even in response to a friend suggestion, required the user to "affirmatively press [a] button." The defendant's suggestion that he might have done so accidentally was pure speculation, unsupported by any evidence. Nor was the judge required to view the defendant's blocking of the victim as proof of reasonable steps to end the contact. The defendant did not delete the friend request until five days after he sent it, and only after the victim reported it to the police. Applying the preponderance of the evidence standard, the judge could infer that reasonable steps to end the contact would have included deleting the friend request shortly after sending it and that the defendant failed to take that step.
3. Predicate for probation violation. The notice of probation violation issued to the defendant alleged that he had committed a new offense -- violation of a G. L. c. 258E order prohibiting contact with the victim -- and the judge found that the defendant committed that offense. The Commonwealth now concedes that this was error because the evidence that the defendant knew the order was still in effect was insufficient. Cf. Commonwealth v. Molloy, 44 Mass. App. Ct. 306, 308-309 (1998) (proof of violation of G. L. c. 209A order requires proof of knowledge that order is in effect). The Commonwealth argues that the violation finding may nevertheless be upheld on an alternative ground: the defendant's contacting the victim also violated a condition of his probation.
One of the general conditions of the defendant's probation was that he obey, among other things, all state laws.
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The conduct found as fact by the judge -- contact with the victim -- unquestionably violated the probation condition. The only remaining issue is whether the defendant was prejudiced by the circumstances that violation of that condition was not alleged in the notice of probation violation and was not relied upon by the judge as the legal predicate (as opposed to factual basis) for revoking probation and imposing sentence. Cf. Commonwealth v. Simon, 57 Mass. App. Ct. 80, 84-86 (2003) (upholding probation violation finding on basis not specifically alleged in violation notice but relied upon by hearing judge, where defendant was unable to show prejudice); Commonwealth v. Morse, 50 Mass. App. Ct. 582, 592-594 (2000) (noncompliance with probation revocation procedures not per se reversible error where probationer received his minimal due process rights or their functional equivalent). We are "free to affirm a ruling on grounds different from those relied on by the [hearing] judge if the correct or preferred basis for affirmance is supported by the record and the findings." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
Having considered the supplemental memoranda submitted by the parties to address this issue, we conclude that the defendant has shown no prejudice. The defendant contends that there is no proof that he knew of the no-contact condition. But the order of probation conditions was signed by the defendant and an interpreter, as well as the plea judge and a probation officer. The defendant neither explains why this is insufficient to prove notice to him nor cites any authority for his suggestion that "corroborating evidence" of notice is required.
The defendant also suggests that, had the notice of probation violation alleged a violation of the no-contact condition, he would have called witnesses to challenge whether order of probation conditions had been properly "served" upon him. But he cites no authority for the proposition that such service is required. Nor does he explain why his signature on the order, immediately below a printed statement acknowledging, "I have received a copy of this [o]rder," does not satisfy any service requirement that may exist.
The defendant next argues that the order of probation conditions, insofar as it included a no-contact condition, was hearsay and was not "substantially reliable" evidence of the conditions the judge had ordered. See Commonwealth v. Durling, 407 Mass. 108, 118 (1990) (where hearsay is sole evidence of probation violation, it must be substantially reliable to support finding of violation). Assuming arguendo that the Durling analysis applies to documents such as an order of probation conditions, the defendant's argument fails.
As indicia of unreliability, the defendant points to a section of the tender of plea form entitled "judge's disposition," which included a stay-away condition but not a no-contact condition. The defendant speculates that the facts underlying the original harassment charge would not have led the plea judge to impose a no-contact condition, meaning that, "[m]ost likely, the probation officer inadvertently checked the ‘no contact’ box." The defendant then invokes the rule that "the violation of conditions added by a probation officer but not ordered by the sentencing judge does not constitute a violation of a defendant's probation." Commonwealth v. MacDonald, 50 Mass. App. Ct. 220, 224 (2000), S.C., 435 Mass. 1005 (2001).
That case, however, involved conditions that were undisputedly added by a probation officer to those ordered by the judge. MacDonald, 50 Mass. App. Ct. at 220-221. Here, in contrast, the plea judge signed the order of probation conditions that included the no-contact condition. The defendant does not identify any particular evidence he could have offered to show that the order did not reliably reflect the conditions applicable to him. In these circumstances, the defendant has not shown any prejudice from the lack of opportunity to offer such evidence, or any other prejudice flowing from the violation notice's failure to allege violation of the no-contact condition.
Order revoking probation and imposing sentence affirmed.