Heard: May 1, 2019.
found and returned in the Superior Court Department on
January 28, 2010.
proceeding for revocation of probation was heard by Laurence
D. Pierce, J.
Bauer for the defendant.
Jessica Langsam, Assistant District Attorney, for the
Present: Sullivan, Massing, & Lemire, JJ.
Superior Court judge found that the defendant, Kerry Ogarro,
violated the terms of his probation by committing a new
crime, assaulting a family or household member. The defendant
claimed that his actions were in defense of property -- the
victim had stolen his cell phone, and he was just trying to
get it back -- and that the statements attributed to the
victim by the testifying police officer were unreliable
hearsay. While we agree with the defendant that the judge was
required to find by a preponderance of the evidence that the
Commonwealth had disproved defense of property in order to
find that the defendant had committed the alleged crime, we
disagree that such a finding must be explicit. Concluding
that the evidence amply disproved the defense of property
claim, that the judge implicitly rejected the defense, and
that the judge did not abuse his discretion by accepting the
victim's out-of-court statements, we affirm.
December 2011, after a jury trial in the Superior Court, the
defendant was convicted of assault and battery by means of a
dangerous weapon (a knife), for which he received a State
prison sentence of from five to seven years, and assault and
battery, for which he received a consecutive three-year term
of probation. A panel of this court affirmed the convictions
in an unpublished memorandum and order issued pursuant to our
rule 1:28. See Commonwealth v. Ogarro, 83
Mass.App.Ct. 1113 (2013). The defendant was subsequently
found in violation of probation,  and the judge imposed a two
and one-half year house of correction sentence on the assault
and battery conviction, one year to be served and the balance
suspended until December 2024. The defendant appealed from
the extension of probation, which a second panel of this
court affirmed. See Commonwealth v. Ogarro,
8 5 Mass.App.Ct. 1110 (2014).
defendant began serving the probationary portion of his
second sentence on or about May 3, 2017. The first condition
of his probation was to "obey all local, state, and
federal laws and all court orders." On August 1, 2017, a
notice of violation issued alleging that he had violated that
condition based on new criminal charges of assault on a
family or household member and disorderly conduct. The final
probation violation hearing was held over the course of two
days in January 2018. Lynn Police Officer Craig Fountain was
the principal witness.
testified that he and his partner, in response to a radio
call, drove their marked cruiser to the area of Union and
Silsbee Streets in downtown Lynn in the early afternoon of
July 29, 2017. Several people on the street
"frantically" waved them down and directed them
toward a location on Broad Street, where they found the
defendant on top of a screaming woman, straddling her and
holding her wrists to the ground. The officers instructed him
to get away from the woman, and he obeyed.
woman, upset and crying, told the officers that she and the
defendant had met at a bus stop so the defendant could
"return some of her stuff to her." When she told
the defendant "that she did not want to be in a
relationship [with] him no more," he "became
enraged and assaulted her several times." She tried to
run away, but the defendant caught her, threw her to the
ground, and got on top of her. Fountain observed scrapes on
the woman's knees, and she "complained of knee
pain." She told the officers that she and the defendant
had been dating for three months. The defendant told the
officers that the woman had stolen his cell phone.
counsel argued that the judge should discredit the statements
attributed to the victim as unreliable hearsay, and that the
defendant used reasonable force in defense of property: he
was holding the woman down "in the process of trying to
retrieve his phone." Accordingly, he argued, the
Commonwealth had the burden not only to prove that the
defendant committed an assault, but "also to prove that
he didn't act with reasonable force to retain his
property." The prosecutor argued that the
defendant's single self-serving statement that the victim
took his cell phone was not sufficient to raise the issue of
defense of property, but even if it were, his use of force
was not reasonable: "the defendant, or a ...