Heard: February 16, 2018.
received and sworn to in the Roxbury Division of the Boston
Municipal Court Department on September 22, 2015. The case
was heard by David Weingarten, J.
P. DeMello for the defendant.
Moldovan (Helle Sachse, Assistant District Attorney, also
present) for the Commonwealth.
Present: Wolohojian, Milkey, & Englander, JJ.
jury-waived trial in Boston Municipal Court, the defendant
was convicted of violating that portion of an abuse
prevention order that required him to "stay away from
the plaintiff's residence." On appeal, the defendant
argues, among other things, that the evidence was
insufficient to support a guilty finding, because there was
no evidence that he entered the property on which the
residence was located, or otherwise intruded on it. Although
it is true that the defendant did not cross the property
boundary or otherwise physically intrude onto the property,
we conclude that the evidence was nonetheless sufficient to
prove beyond a reasonable doubt that he failed to "stay
away" from the residence. We reach this conclusion
because the phrase "stay away," although tethered
to specific premises, is not limited solely to physical
intrusion on them. On this basis, and because we conclude
that the defendant's remaining arguments are without
merit, we affirm.
August 25, 2015, E.C. obtained an ex parte abuse protection
order against the defendant that subsequently was extended.
The operative terms of the order are set forth in three
numbered paragraphs. Paragraph 1 ordered the defendant
"NOT TO ABUSE [E.C] by harming, threatening or
attempting to harm [her] physically or by placing [her] in
fear of imminent serious physical harm, or by using force,
threat or duress to make [her] engage in sexual
relations." Paragraph 2 included two prohibitions.
First, it ordered the defendant "NOT TO CONTACT [E.C],
in person, by telephone, in writing, electronically or
otherwise, either directly or through someone else."
Second, it ordered the defendant "to stay at least 100
yards away from [E.C]." Finally, paragraph 3 ordered the
defendant "TO IMMEDIATELY LEAVE AND STAY AWAY FROM
[E.C.'s] RESIDENCE, except as permitted in [two
subsequent paragraphs that do not apply], located at [a
specified street address]." Because E.C. lived in a
multifamily dwelling, the order went on to specify that the
defendant was required "to immediately leave and remain
away from the entire apartment building or other multiple
family dwelling in which [her] residence is
parties informed the judge at the commencement of the trial,
the Commonwealth made no contention that the defendant had
violated paragraphs 1 and 2 of the order, that is, by
abusing, contacting, or coming within one hundred yards of
E.C. Instead, the Commonwealth's sole contention was that
the defendant violated paragraph 3 of the order by not
staying "away from the entire apartment building ... in
which [E.C.'s] residence was located."
did not testify at trial. The Commonwealth's sole witness
was a police officer who drove to E.C.'s address at
approximately 10:30 A.M. on September 22, 2015, in response
to a "radio call." Other than the fact that the
officer learned of E.C.'s address from the radio call,
virtually nothing about the content of that call was admitted
the officer received the radio call, he arrived at E.C.'s
address "within [five] minutes may be." Once there,
he observed the defendant standing on the sidewalk outside
the property. He was with other individuals, "like a
group of friends talking." Separating the sidewalk from
the property on which the building was located was a wrought
iron fence that was "about knee high." At no point
did the officer see the defendant inside the fence, or on the
walkway or stairs leading to the building. According to the
officer, the 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 E.C.
close of the evidence, the defendant moved for a required
finding of not guilty, arguing, among other things, that
there was no evidence that he violated the requirement that
he stay away from E.C.'s residence, and that that
provision was void for vagueness. Acknowledging that the
order did not require the defendant to stay a particular
distance away from the residence, the prosecutor argued that
the judge could infer that the defendant was required to stay
a "reasonable" distance away. She also suggested
that a reasonable distance would be one hundred yards (to
make it congruent with the express requirement of the order
that the defendant stay one hundred yards away from E.C.).
judge rejected the Commonwealth's argument that the order
required the defendant to stay one hundred yards away from
the residence, and he indicated that he thought the
defendant's argument had some force. Nevertheless, the
judge ultimately found the evidence sufficient, stating his
view that "as a matter of law," being twenty-five
feet away from the building ...