Heard: December 11, 2017.
received and sworn to in the Lowell Division of the District
Court Department on February 23, 2015.
motion to dismiss was heard by Michael J. Brooks, J., and the
case was tried before Daniel C. Crane, J.
Christopher DeMayo for the defendant.
Kim, Assistant District Attorney, for the Commonwealth.
Present: Agnes, Sacks, & Lemire, JJ.
defendant was convicted of violating the provisions of two G.
L. c. 258E harassment prevention orders that required him to
"remain away from [the protected persons']
residence." On appeal, the defendant argues that the
remain-away provision was misinterpreted, both by a motion
judge in refusing to dismiss the complaint for lack of
probable cause, and by the trial judge in responding to a
jury question about the provision.
conclude that ordinarily, the remain-away provision of a c.
258E order prohibits a defendant from (1) crossing the
residence's property line, (2) engaging in conduct that
intrudes directly into the residence, and (3) coming within
sufficient proximity to the property line that he would be
able to abuse, contact, or harass a protected person if that
person were on the property or entering or leaving it. A
protected person need not actually be present for such a
violation of the order to occur.
these standards here, we conclude that there was probable
cause to issue the complaint, but that it was an abuse of
discretion for the trial judge to instruct the jury, in
response to their request to explain the remain-away
provision, that they should give the phrase its "plain
meaning," using their common sense and life experiences.
The defendant is therefore entitled to a new trial.
defendant had been a member of the Montefiore Society
Synagogue, a small congregation located in Lowell, since at
least 2007. After the defendant's conduct at the
synagogue led to disputes between him and John and Mary Smith
(pseudonyms) -- a husband and wife who held leadership
positions in the congregation -- the Smiths obtained
essentially identical c. 258E orders against the defendant in
2011. The orders, issued on the Trial Court's preprinted
forms, originally required the defendant not to abuse or
harass the Smiths, not to contact them, to stay at least one
hundred yards away from them, and to "remain away from
[their] residence located at" a specified address in
Lowell. The defendant also lived in a house in
Lowell, and he owned a rental property in Lowell, not far
from the Smiths' residence.
orders were extended in 2012 and 2013; they were extended
again in 2014, with the modification that the defendant was
no longer required to remain one hundred yards away from the
Smiths or to refrain from contacting them. The orders were
extended yet again in 2015, with the further modification
that the defendant could "attend services at the
synagogue . . . respectfully and not abuse" the Smiths.
thereafter, a large snowstorm having been forecast for
Saturday, February 21, 2015, the Smiths invited members of
the synagogue to spend the night of February 20 at the Smith
residence, so that services could be conducted at the
residence the following day without members having to travel
outdoors. About fourteen members accepted. The defendant was
was conflicting evidence about what occurred during services
the next morning. The Commonwealth's case included
evidence that John Smith looked out his living room window
and noticed the defendant walking along the street within
thirty to forty feet of the Smiths' property. He asked
his wife to call the police. She then looked out another
window, saw the defendant walking up their driveway, and
called 911. A police officer arrived a few minutes later and
observed the defendant standing in front of the Smiths'
house. The officer spoke to the Smiths and then arrested the
defendant for violating the c. 258E orders.
defendant told a different story. He testified that he had
walked to the synagogue that morning but, finding no one
there, walked in the direction of his rental property to
speak to his tenants. Because the Smiths lived nearby, he
also walked toward their residence, to see "if they did
their service there so that I wouldn't be able to
come." The defendant testified that he wanted to see
whether there were cars at the Smiths' residence, and
that he came no closer than an intersection that, according
to a map admitted in ...