Opinion
20-P-29
10-26-2020
COMMONWEALTH v. Marek KOZUBAL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Marek Kozubal, was convicted of seven counts of aggravated indecent assault and battery on a child under the age of fourteen, and one count of indecent assault and battery on a child under the age of fourteen, and was sentenced to seven concurrent terms of ten to ten years and one day, with three years of probation following his committed term of incarceration. The defendant moved for a stay of execution of his sentence, and the motion was denied by the trial judge. The defendant then filed a motion to a single justice of this court for a stay of execution of his sentence, pursuant to Mass. R. A. P. 6 (b), as appearing in 481 Mass. 1608 (2019), and the single justice requested that the trial judge make further findings on the issue of the defendant's security risk. After receiving such findings, the single justice denied the defendant's motion. We affirm.
Background. The defendant, a thirty-nine year old male, met the thirteen year old victim when she, her father, and her stepmother enrolled in an amateur radio class in January of 2016 at the Dexter Southfield School where the defendant was employed. The defendant sat in on the class, and befriended the victim's parents. When the class ended in February of 2016, the defendant and the victim's family exchanged contact information. The defendant began, almost immediately, sending private text messages to the victim. Over the course of the next six months, the defendant and the victim exchanged thousands of text messages.
During this time, the defendant and the victim's parents became increasingly close, and the defendant attended a family trip to New Hampshire. In April of 2016, the victim, her father, and her stepmother enrolled in an astronomy class taught by the defendant at Dexter Southfield School. The victim's parents expressed concern to the defendant that the victim had developed a crush on him. He assured the victim's parents that he had previously experienced student crushes, and would set the appropriate boundaries with the victim.
However, during the weekend of June 24, 2016, to June 26, 2016, a field day event was held at Dexter Southfield School. Each morning, the victim's stepmother dropped the victim off at the event where the victim met up with the defendant. On the first day of the outdoor event, the defendant brought the victim inside of the school and unlocked one of the classrooms with his keys. Once inside of the classroom, the defendant kissed the victim for the first time. Immediately after the kiss, the defendant told the victim that she could not tell anybody because he "could get in big trouble." Later that same day, the defendant kissed the victim two additional times in the stairwell of the school when nobody else was around. During each of these encounters, the defendant touched the victim's breasts over her clothing, and pulled her shirt away from her body to look at her breasts. On the second day of the event, the defendant kissed the victim "at least three times" in a classroom on the fifth floor of the school. He also kissed her neck and ears, and touched her breasts on two occasions both over and under her clothing. To conceal the relationship, the defendant instructed the victim not to send him text messages about their physical encounters, to use code words such as "nices" to replace the word "kisses," and showed the victim how to delete her text messages. The defendant also, at one point during the weekend, took the victim's cell phone and deleted their text message thread from the cell phone.
Additionally, on July 6, 2016, the defendant visited the victim's home for a family movie night, but because the victim's father and stepmother were arguing, they did not watch a movie. Rather, the defendant and the victim were left alone in the basement of the home. In the basement, the defendant kissed the victim, touched her breasts with his hands and mouth, and touched her vagina with his fingers both over and under her underwear. Later that same evening, the defendant and the victim walked to the park near the victim's house. During this time, her parents did not know where she was and were unable to get in contact with her. When the victim arrived home with the defendant, the victim's parents punished her and confiscated her iPod and cell phone. After looking through the devices, the victim's stepmother discovered the text messages between the victim and the defendant. The victim eventually confessed to her parents about the substance of her relationship with the defendant, the police were contacted, and the defendant was arrested.
Discussion. "We review the single justice's order denying a motion for stay to determine (1) ‘whether the single justice committed error of law in declining to make an independent exercise of discretion on the issue of the stay of execution, in place of that made by the trial judge’; and (2) whether the single justice erred in ruling that the trial judge's action on the motion to stay was not an abuse of discretion." Commonwealth v. Mattier, 474 Mass. 227, 228 (2016), quoting Commonwealth v. Hodge (No. 1), 380 Mass. 851, 852 (1980). In determining whether to grant a stay, "two factors are considered: (1) whether the defendant's appeal presents an issue which is worthy of presentation to an appellate court, one which offers some reasonable possibility of a successful decision; and (2) whether the defendant's release poses a security risk" (quotations and citations omitted). Mattier, supra at 229.
The issue of success on appeal is "a pure question of law or legal judgment." Commonwealth v. Allen, 378 Mass. 489, 498 (1979), quoting Commonwealth v. Levin, 7 Mass. App. Ct. 501, 505 (1979). Here, the single justice independently reviewed the defendant's likelihood of success on appeal, and determined, as the trial judge did, that the defendant made the requisite showing. See Commonwealth v. Cohen (No. 2), 456 Mass. 128, 133 n.7 (2010). Accordingly, we defer to the single justice on this issue, and focus our inquiry on the defendant's security risk.
The considerations relating to security include "the possibility of flight to avoid punishment; potential danger to any other person or to the community; and the likelihood of further criminal acts during the pendency of the appeal." Hodge (No. 1), 380 Mass. at 855. Relevant to this inquiry is the defendant's "familial status, roots in the community, employment, prior criminal record, and general attitude and demeanor. These considerations involve determinations of fact and the exercise of sound, practical judgment, and common sense. The exercise of discretion by the trial judge will be upheld unless it is shown that he abused that discretion." Id.
"Of the two considerations relevant to a stay pending appeal, a single justice will more likely decline to exercise his own, independent discretion on the issue of security[.]" Cohen (No. 2), 456 Mass. at 133 n.7. This is precisely what the single justice did here. After reviewing the requested further findings from the trial judge, the single justice, as he was entitled to do, deferred to the trial judge and denied the stay without explanation. See id. at 133. The single justice did not commit error of law in declining to make an independent exercise of his discretion on the issue of security.
Furthermore, his determination that the trial judge did not abuse his discretion was within reason. The trial judge recognized that the defendant's risk of flight, while heightened postconviction, was still quite low given that the defendant had been diligent in attending his prior court dates and had ties to the community in which he lived. The trial judge was further minimally concerned that the defendant posed a specific security risk to the victim because the victim, "by the time of trial, was thoroughly undeceived as to the defendant's exploitive behavior and intentions," and it did not seem likely that "the defendant would make any effort to rekindle his relationship with her. His behavior was calculated, not propelled by irrational passion."
The trial judge, nevertheless, found that the defendant posed a security risk to the community given the nature of the defendant's crime and the manner in which it was carried out. The defendant gained access to the victim through a covert and calculated scheme. He used his position as a trusted friend of the victim's parents to alleviate their concerns about the relationship, and fostered the relationship with the victim over private text messages. To conceal the content of their conversations, he taught the victim to delete incriminating text messages, to refrain from discussing their physical encounters in their messages, and to use code words to avoid being caught. The trial judge found that while typical conditions such as a stay away order or global positioning system (GPS) tracking could prevent the security risks to the victim herself, such measures could not prevent the risk to new adolescent victims who may be susceptible to the defendant's predatory and surreptitious behavior. The defendant did not accomplish his crime by physical force, but rather, he employed his proficiency in technology to become close to the victim and gain her trust through private text messages. Because this behavior can be accomplished at any location, these protective measures may be helpful in identifying the defendant following a subsequent offense, but would do very little to safeguard against the offense from occurring in the first place. While we recognize that the defendant had no criminal record prior to his convictions, we cannot say that the decision to deny the defendant's motion for stay of execution of his sentence fell "outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Accordingly, we discern no abuse of discretion.
We do not agree with the defendant's contention that the trial judge's statement, "I cannot and do not find that the defendant ‘presents no ... danger to the community and that he is unlikely to commit additional criminal acts during the pendency of his ... appeal’ " was an improper application of the standard for a motion to stay. This language was taken directly from Commonwealth v. Springfield Terminal Ry. Co., 77 Mass. App. Ct. 225, 228 (2010), quoting Commonwealth v. Senior, 429 Mass. 1021, 1022 (1999). It is merely a different formulation of what the defendant suggests is the correct standard: "whether the defendant's release poses a security risk," and we do not believe the use of the latter language would have altered the trial judge's determination. See Mattier, 474 Mass. at 228-229, quoting Commonwealth v. Charles, 466 Mass. 63, 77 (2013).
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Order of single justice denying motion for stay of execution of sentence affirmed.