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Commonwealth v. Medeiros

Appeals Court of Massachusetts, Bristol

April 4, 2019

COMMONWEALTH
v.
BRUCE MEDEIROS.

          Heard: October 12, 2018.

          Indictments found and returned in the Superior Court Department on March 4, 2002. A proceeding for revocation of probation was heard by Renee P. Dupuis, J.

          Tara B. Ganguly for the defendant.

          Mary E. Lee, Assistant District Attorney, for the Commonwealth.

          Present: Vuono, Meade, Milkey, Desmond, & Wendlandt, JJ.[1]

          DESMOND, J.

         In this case, we consider the meaning of a special probation condition to "have no involvement with minors without responsible adult supervision." Because we conclude that the defendant had sufficient notice that trying to enter a grammar school through a locked rear door, without adult supervision and during classroom hours, violated this condition, we affirm the finding of a violation of the defendant's terms of probation and affirm the order revoking probation and imposing sentence.

         Background.

         In 2001, the defendant was arrested for displaying child pornography and exposing himself to two girls, aged nine and eleven, who were walking home from school. For that offense, the defendant pleaded guilty in 2002 to two counts of dissemination of matter harmful to a minor, two counts of dissemination of child pornography, and three counts of possession of child pornography. He received concurrent terms of four to five years in State prison on his convictions of dissemination of matter harmful to a minor and possession of child pornography. He also received a five-year probationary term for his convictions of dissemination of child pornography, which was set to begin after his release from State prison. One of the special conditions of his probation was to have "no involvement with minors without responsible adult supervision."[2]

         The 2002 convictions also violated an existing probation order in Florida, stemming from another incident where the defendant had exposed himself to children. Thus, once he completed his Massachusetts prison term in 2006, the defendant was extradited to Florida. The defendant returned to Massachusetts in December, 2012, and his five-year probationary term began at that time.

         At roughly eight o'clock in the morning on December 5, 2013, off-duty New Bedford Police Sergeant Joshua Fernandes was walking near a Catholic grammar school in New Bedford when he made eye contact with the defendant, who was walking on the sidewalk of a cross street that ran along the front of the school. When Sergeant Fernandes peered over his shoulder, he saw the defendant do an "about face" and reverse his direction to move toward the school building. The building was surrounded by a ten-foot high chain link fence, with gaps at the stairwells that led to the school's exterior doors. Sergeant Fernandes observed the defendant enter the schoolyard and approach a ground level door in the back of the school. The door was secured by a keypad locking mechanism, equipped with an intercom and surveillance system, and was marked, "Please close the door firmly behind you." The sergeant watched the defendant peer into the school through the glass portion of the door, grab the door handle, and "attempt[] to open it," but he was thwarted by the locking mechanism.

         The defendant then followed a blacktopped area on school property toward another entrance in the back of the building. At that point, Sergeant Fernandes used his cell phone to call a marked unit for assistance, and subsequently lost sight of the defendant for approximately thirty seconds. When the sergeant next saw the defendant, he was on the sidewalk adjacent to a third entrance to the school, heading toward a nearby bus stop.

         Suspicious of the defendant's behavior, Sergeant Fernandes called for a marked police unit to the area and approached the defendant at the bus stop and identified himself as a police officer. He twice asked the defendant why he had tried to gain access to the school, but the defendant did not give a direct answer. Sergeant Fernandes next asked what he was doing in the area. The defendant stated that he had taken a bus from his home to Melville Towers, a location in downtown New Bedford, and then had gone to a store north of the school to buy cigarettes. Sergeant Fernandes was familiar with the area, and knew there was a store adjacent to Melville Towers that sold cigarettes. He therefore inquired why the defendant would walk away from Melville Towers to purchase cigarettes. He received no response. Once the marked unit arrived, the sergeant ran a check on the defendant and learned he was a registered level three sex offender.[3] Sergeant Fernandes notified the school of the incident and applied for a criminal complaint to issue for one count of trespass.

         The defendant was served with a written notice of probation surrender alleging that he had violated the special condition of probation to "have no involvement with minors without responsible adult supervision." The notice also alleged that he had failed to obey a New Bedford ordinance prohibiting sex offenders from entering "child safety zones" (as defined in the ordinance) in violation of the condition of probation that he obey local, State, and Federal laws. An initial probation surrender hearing was scheduled for January 2, 2014, and the violation hearing was held across a series of dates in 2014 and 2015.[4]

         The defendant testified on October 10, 2014, at the probation violation hearing. In that hearing, he admitted that he knew the building was a school, and claimed that he had approached the school to inquire about a food pantry that was sponsored by a nearby church. The judge did not credit the defendant's testimony, [5] and on October 16, 2014, found him to be in violation of the terms of his probation. On August 12, 2015, the judge revoked the defendant's probation and sentenced him to ten to fourteen years in State prison. This appeal followed.

         D ...


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