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Commonwealth v. Kurko

Appeals Court of Massachusetts, Suffolk

August 1, 2019

COMMONWEALTH
v.
SARAH KURKO.

          Heard: March 12, 2019.

         Complaint received and sworn to in the Brighton Division of the Boston Municipal Court Department on March 8, 2016.

         The case was tried before Myong J. Joun, J.

          Sarah M. Unger for the defendant.

          Monica J. DeLateur, Assistant District Attorney, for the Commonwealth.

          Present: Desmond, Sacks, & Lemire, JJ.

          LEMIRE, J.

         After a 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 verdict.[1]

         Facts.

         We 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 unit."

         The 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 it.

         Prior 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.[2]

         At the 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.

         D ...


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