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Commonwealth v. Watson

Appeals Court of Massachusetts, Suffolk

October 17, 2018


          Heard: February 16, 2018.

         Complaint 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.

          Kevin P. DeMello for the defendant.

          Ioana Moldovan (Helle Sachse, Assistant District Attorney, also present) for the Commonwealth.

          Present: Wolohojian, Milkey, & Englander, JJ.


         After a 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.


         On 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 located."[1]

         As the 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."

         E.C. 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 in evidence.[2]

         After 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. lived.[3]

         At the 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.).

         The 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 ...

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