March 12, 2019.
received and sworn to in the Brighton Division of the Boston
Municipal Court Department on March 8, 2016.
case was tried before Myong J. Joun, J.
M. Unger for the defendant.
J. DeLateur, Assistant District Attorney, for the
Present: Desmond, Sacks, & Lemire, JJ.
one-day jury trial, the defendant was convicted of a single
count of violation of a harassment prevention order. At the
close of the Commonwealth's evidence, and at the close of
all evidence, the defendant moved for a required finding of
not guilty. Her motions were denied. On appeal, she argues
that the trial judge erred in denying her motion at the close
of the Commonwealth's case because there was insufficient
evidence to support her conviction. Because we agree that the
Commonwealth presented insufficient evidence on the sole
charge, we reverse the judgment and set aside the
recite the facts in the light most favorable to the
Commonwealth. The complainant was a concierge at a luxury
condominium complex, whose job was to greet and assist the
residents. During his employment there, he obtained a
harassment prevention order against the defendant, a
resident. The complainant continued to have regular daily
contact with the defendant at the complex after obtaining the
order, despite trying to avoid her. On the afternoon of
January 5, 2016, while the harassment prevention order
against the defendant was still active, the complainant was
beginning his shift, and was taking over from a coworker who
was ending her shift. The complainant's coworker had been
assisting the defendant with paperwork, which was
"jumbled and mixed up." When the complainant took
over the task, he told the defendant that she needed to put
the papers in order, and she "erupted." The
defendant was "screaming at the top of [her] lungs"
and swearing. She lunged toward the complainant over the
desk, and pointed her finger in his face. The complainant
told her to lower her voice and "go to [her] unit,"
but she refused, and he ultimately called 911 for assistance.
The interaction lasted approximately twelve to fifteen
minutes before the defendant "went back up into her
defendant testified that the complainant had taken the papers
in question and "just threw them up in the air."
She admitted that she had gotten upset and angry, and was
yelling and swearing, but denied lunging at the complainant.
During her testimony, the defendant was not asked about the
harassment prevention order at issue, and made no reference
to trial, the parties notified the judge that they intended
to stipulate to (1) the existence of the order; (2) that it
was in effect on the date of the offense; and (3) that the
defendant was served with the order and aware of its
existence and terms. Ultimately, however, no such stipulation
was introduced in evidence or otherwise presented to the jury
before the close of evidence. Although the parties and the
judge had expressed their expectation that the Commonwealth
would introduce a redacted copy of the order itself in
evidence, the order was never proffered.
close of the Commonwealth's evidence, the defendant moved
for a directed verdict, arguing only that the defendant's
conduct did not rise to a level sufficient to violate the
order. At the close of all evidence, the defendant renewed
her motion without additional argument. During a charge
conference, the parties reiterated their understanding of the
stipulation, and agreed that the judge would not instruct the
jury on the element of knowledge. Without objection, during
the jury charge, the judge then instructed the jury that
"both sides agreed and stipulated" that (1) a court
issued a harassment prevention order prohibiting the
defendant from abusing or harassing the complainant; (2) the
order was in effect on the day of the alleged violation; and
(3) the defendant knew of the order and its terms. He
instructed the jury that the only element that they needed to
consider was whether the defendant violated the order by
abusing or harassing the complainant.