Opinion
18-P-1250
12-03-2019
COMMONWEALTH v. Perry S. FALK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Perry Falk, of violating an abuse prevention order, G. L. c. 209A, § 7. The defendant appeals asserting the evidence was insufficient to prove that he violated the stay away provision of the order or, in the alternative, that he is entitled to a new trial with the benefit of a jury instruction clarifying the term "stay away." We affirm.
Background. On January 9, 2017, the defendant's former wife was granted an abuse prevention order against the defendant by a judge in the Leominster District Court. The order included a provision that the defendant was to stay at least one hundred yards from the former wife. On July 16, 2017, the former wife observed out her bay window the defendant staring at her home as he drove past her home going approximately five miles per hour. The former wife and the defendant had lived together in the residence while they were married. The roadway on which the defendant was driving was approximately twenty-five feet from the home.
1. Sufficiency of evidence. "To establish a violation of G. L. c. 209A, § 7, the Commonwealth must 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). Here, the defendant only asserts that there was insufficient evidence to support that he violated the stay away provision of the order.
When reviewing a denial of a motion for a required finding of not guilty, we assess the evidence in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The defendant, relying on recent decisions of this court, argues on appeal that since the defendant did not enter the property or remain in close proximity to the property he was not in violation of the stay away provision of the abuse prevention order and his motion for required finding should have been allowed. Cf. Commonwealth v. Watson, 94 Mass. App. Ct. 244, 245-246, 247-248 (2018) (Commonwealth made no contention that defendant had violated order by abusing, contacting, or coming within one hundred yards of victims); Telcinord, 94 Mass. App. Ct. at 241 (2018) (defendant prosecuted for violating stay away provision of abuse prevention order); Commonwealth v. Goldman, 94 Mass. App. Ct. 222, 227-228 (2018) (defendant was convicted of violating provisions of two G. L. c. 258E harassment prevention orders that required him to "remain away from [the protected persons'] residence"). These decisions are inapplicable here since they ignore the Commonwealth's theory of prosecution. In Goldman, Telcinord, and Watson, this court provided direction for the meaning of the term "stay away" in prosecution of abuse prevention and harassment prevention order violations where the provision of the order alleged to be violated failed to provide a specific distance restriction. Here, the theory of prosecution as set forth in the prosecutor's opening statement and closing argument was not based on the defendant's failure to remain or stay away; rather, it was based on his violation of the provision of the protective order that required him to stay at least one hundred yards away from his former wife. The evidence at trial placed the defendant within approximately twenty-five feet of his former wife.
Since the Commonwealth's evidence was sufficient to prove a violation under the theory that the defendant violated the provision of the abuse prevention order requiring him to remain one hundred yards from his former wife, we discern no error in the judge's order denying the defendant's motion for a required finding of not guilty.
The defendant's presence on the roadway in front of the former wife's home and the manner in which he drove his motor vehicle while staring at the home are indicative of the intentionality of his action and his awareness of her being present in the home. See Commonwealth v. Silva, 431 Mass. 194, 200 (2000).
2. New trial. The defendant alternatively claims that he is entitled to a new trial with the benefit of the jury instruction on the term "stay away from" pursuant to Goldman, 94 Mass. App. Ct. at 228. Even though Goldman was decided after this trial, we note that the defendant presented no objection to the jury instruction; nor did the defendant request any jury instruction on the term "stay away from." Further, the jury did not ask any question relating to the term. "The judge is not required to grant a particular instruction so long as the charge, as a whole, adequately covers the issue." Commonwealth v. Anderson, 396 Mass. 306, 316 (1985). As discussed above, the Commonwealth's theory was that the defendant violated the portion of the order that required him to remain at least one hundred yards from his former wife. The judge's instruction here sufficiently covered this violation. We conclude that the instruction was sufficient in light of the evidence at trial.
Judgment affirmed.