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Commonwealth v. Ogarro

Appeals Court of Massachusetts, Middlesex

July 24, 2019

COMMONWEALTH
v.
KERRY OGARRO.

          Heard: May 1, 2019.

         Indictments found and returned in the Superior Court Department on January 28, 2010.

         A proceeding for revocation of probation was heard by Laurence D. Pierce, J.

          Max Bauer for the defendant.

          Jessica Langsam, Assistant District Attorney, for the Commonwealth.

          Present: Sullivan, Massing, & Lemire, JJ.

          MASSING, J.

         A 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.

         Background.

         In 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 A panel of this court affirmed the convictions in an unpublished memorandum and order issued pursuant to our rule 1:28.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, [1] 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).

         The 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.

         Fountain 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.

         The 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.

         Defense 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 ...


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