Heard: November 2, 2018.
Indictments found and returned in the Superior Court
Department on July 3, 2013. The cases were tried before
Raymond J. Brassard, J., and a posttrial motion for access to
audio recordings was heard by Thomas A. Connors, J.
Fronhofer for the defendant.
Stephanie Martin Glennon, Assistant District Attorney (Lisa
B. Beatty, Assistant District Attorney, also present) for the
Present: Wolohojian, Hanlon, & Ditkoff, JJ. Breaking and
Entering. Parental Kidnapping. Intent.
defendant forcibly removed his two young children from the
foster home where they had been placed by the Department of
Children and Families (DCF) . After a jury trial in which he
represented himself, the defendant was convicted of breaking
and entering with intent to commit a felony, G. L. c. 266,
§ 18; two counts of aggravated parental kidnapping, G.
L. c. 265, § 26A; assault and battery upon a person over
sixty, G. L. c. 265, § 13K; and battery on a child, G.
L. c. 265, § 13A. Raising numerous issues in this appeal,
some pursuant to Commonwealth v.
Moffett, 383 Mass. 201 (1981), the defendant
challenges his convictions and the denial in part of his
posttrial motion seeking portions of the audio recording of
the trial. We affirm.
summarize the undisputed facts, reserving additional factual
detail where necessary for our later discussion of the
defendant's claims. While living in Vietnam, the
defendant, a United States citizen, had two children with a
Vietnamese woman: a girl, S.L., and a boy, P.L. The
children's mother spent periods away and eventually moved
to Switzerland. The defendant returned to the United States
with the children and initially lived with members of his
family in Utah. After he found work in Massachusetts,
however, he moved here with the children in August 2011; they
lived in a motel near his workplace. When the motel manager
reported that the children (then ages nine and seven) were
being left alone during the day, they were removed from the
defendant's custody and placed in a foster home.
Permanent custody was awarded to DCF on March 1, 2013.
Subsequently, DCF moved to transfer custody to the mother in
Switzerland; the motion was scheduled to be heard on May 29,
days before that scheduled hearing, the defendant had a
supervised visit with the children after which a DCF employee
drove the children back to the foster home. Despite the fact
that the defendant was not permitted to meet with the
children outside his permitted supervised visits or to know
where they lived, the defendant followed them in his car,
which he had packed with many items associated with a long
trip.' He then waited outside the foster home
as the DCF employee delivered the children to the home. The
boy came back outside to play and spotted the defendant; he
ran back inside the house to alert the foster mother to the
defendant's presence. The defendant gave chase and
followed the boy onto the porch of the house, where the
foster mother tried to block the defendant's further
progress. The defendant pushed the sixty-three year old
foster mother aside in order to enter the kitchen. He then
grabbed the boy and pulled him through the house, out the
front door, and across the lawn. After putting the boy in the
car, the defendant also pushed the girl into the car. He then
drove the children away. He was apprehended late that night
in Connecticut as a result of an Amber alert.
Breaking and entering charge.
defendant challenges his conviction of breaking and entering
with the intent to commit the felony of aggravated parental
kidnapping on four grounds. First, he contends that the judge
erred in instructing the jury that a person's body could
be an obstruction that, if removed, can constitute a
"breaking." Second, he contends that the
instructions did not clearly inform the jury that the
defendant's felonious intent must have been formed by the
time he broke and entered the home. Third, he argues that the
jury should have been instructed on the lesser included
offense of breaking and entering with the intent to commit
the misdemeanor form of parental kidnapping, G. L. c. 265,
§ 26A. Fourth, he contends that the conviction must be
reversed because the evidence indisputably showed that the
occupant of the home had been put in fear, whereas the
statute required that the Commonwealth prove no one was
placed in fear. We address each argument in turn.
have noted above, it was undisputed that the defendant pushed
the foster mother aside before entering the kitchen of the
foster home. But there was a dispute whether, before reaching
the foster mother, the defendant had entered the porch of the
house through an open or closed door. The foster mother
testified that the defendant entered the home by pushing open
a storm door. She then stiffly blocked him with her hand and
said, "[Y]ou know you're not supposed to do
this." By contrast, the defendant testified that he
entered the house through a door that had been left open by
P.L. as the boy ran into the house.
Without objection, the judge instructed the jury:
"Breaking has been defined as exerting physical force,
even slight physical force, and thereby forcibly removing an
obstruction and gaining entry.
"Another definition would be the moving in a significant
manner of anything that bars the way into the building. Some
examples would include breaking a window, forcing open a door
or window. But there are some less obvious examples that also
are considered to be break ins. Opening a closed door or
opening a closed window is a break in, even if they are
unlocked. Going in through an open window that is not
intended for use as an entrance is also a break in. But going
in through an unobstructed entrance, such as an open door, is
focusing on the latter part of this definition, the
deliberating jury posed the following questions to the judge:
"Does a person constitute an obstruction, specifically
in breaking?" and "[D]oes a verbal warning
constitute an obstruction in breaking?" The judge
responded to the jury that "Yes, a person's body may
constitute an 'obstruction.' [And, ] [n]o, a verbal
warning may not. I am happy to answer any further questions,
and/or repeat my instruction on the element of
'breaking.'" The defendant objected and now
argues that it was error to instruct that a person's body
may constitute an "obstruction" sufficient to
constitute a "breaking."
assuming the instruction was erroneous as phrased (a matter
we do not decide), reversal would not result because the two
conflicting versions of the facts both constituted
"breaking" into the house regardless of the foster
mother's action. See Commonwealth v.
Peruzzi, 15 Mass.App.Ct. 437, 445 (1983), quoting
Kotteakos v. United States, 328
U.S. 750, 764 (1946) (error is nonprejudicial if we are
"sure that the error did not influence the jury, or had
but very slight effect") . If, on the one hand, the jury
credited the foster mother's testimony that the defendant
pushed the door open to enter the house, that act clearly
constitutes "breaking." See Commonwealth
v. Bolden, 470 Mass. 274, 280 n.3 (2014)
("the defendant committed the required break by opening
the rear door to the dwelling and thereupon entering
it"). If, on the other hand, the jury credited the
defendant's testimony that the boy opened the door in
order to seek safety from the defendant who was chasing him,
that too constituted a breaking, albeit a constructive one.
See Commonwealth v. Lowrey, 158
Mass. 18, 19 (1893) ("It was not necessary that [the
defendant] should have touched the door if he procured
himself to be let in by an accomplice and entered with
felonious intent. He might have been convicted, even if the
hand which he made use of was innocent, as in case of a
servant or constable"); Commonwealth v.
Labare, 11 Mass.App.Ct. 370, 374-375, 377-378 (1981)
(entry obtained by trickery is constructive break).
Compelling another to open a closed door so as to gain entry,
whether by agreement, trickery, force or -- as here -- fear,
is sufficient to constitute a breaking even though it is
accomplished by indirect means. Thus, because under either
version of events, the breaking was accomplished before the
defendant reached the foster mother, it matters not whether
her body constituted an additional impediment to entry.