Commonwealth v. Watson

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17-P-623 Appeals Court

COMMONWEALTH vs. GEOFFREY F. WATSON.

No. 17-P-623.

Suffolk. February 16, 2018. - October 17, 2018.

Present: Wolohojian, Milkey, & Englander, JJ.

Abuse Prevention. Protective Order. Notice. Constitutional
Law, Confrontation of witnesses. Practice, Criminal,
Confrontation of witnesses. Words, "Stay away."

Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on September 22, 2015.

The case was heard by David Weingarten, J.

Kevin P. DeMello for the defendant.
Ioana Moldovan (Helle Sachse, Assistant District Attorney,
also present) for the Commonwealth.

ENGLANDER, J. After a jury-waived trial in Boston

Municipal Court, the defendant was convicted of violating that

portion of an abuse prevention order that required him to "stay

away from the plaintiff's residence." On appeal, the defendant

argues, among other things, that the evidence was insufficient
 2

to support a guilty finding, because there was no evidence that

he entered the property on which the residence was located, or

otherwise intruded on it. Although it is true that the defendant

did not cross the property boundary or otherwise physically

intrude onto the property, we conclude that the evidence was

nonetheless sufficient to prove beyond a reasonable doubt that

he failed to "stay away" from the residence. We reach this

conclusion because the phrase "stay away," although tethered to

specific premises, is not limited solely to physical intrusion

on them. On this basis, and because we conclude that the

defendant's remaining arguments are without merit, we affirm.

Background. On August 25, 2015, E.C. obtained an ex parte

abuse protection order against the defendant that subsequently

was extended. The operative terms of the order are set forth in

three numbered paragraphs. Paragraph 1 ordered the defendant

"NOT TO ABUSE [E.C.] by harming, threatening or attempting to

harm [her] physically or by placing [her] in fear of imminent

serious physical harm, or by using force, threat or duress to

make [her] engage in sexual relations." Paragraph 2 included

two prohibitions. First, it ordered the defendant "NOT TO

CONTACT [E.C.], in person, by telephone, in writing,

electronically or otherwise, either directly or through someone

else." Second, it ordered the defendant "to stay at least 100

yards away from [E.C.]." Finally, paragraph 3 ordered the
 3

defendant "TO IMMEDIATELY LEAVE AND STAY AWAY FROM [E.C.'s]

RESIDENCE, except as permitted in [two subsequent paragraphs

that do not apply], located at [a specified street address]."

Because E.C. lived in a multifamily dwelling, the order went on

to specify that the defendant was required "to immediately leave

and remain away from the entire apartment building or other

multiple family dwelling in which [her] residence is located."1

As the parties informed the judge at the commencement of

the trial, the Commonwealth made no contention that the

defendant had violated paragraphs 1 and 2 of the order, that is,

by abusing, contacting, or coming within one hundred yards of

E.C. Instead, the Commonwealth's sole contention was that the

defendant violated paragraph 3 of the order by not staying "away

from the entire apartment building . . . in which [E.C.'s]

residence was located."

E.C. did not testify at trial. The Commonwealth's sole

witness was a police officer who drove to E.C.'s address at

approximately 10:30 A.M. on September 22, 2015, in response to a

"radio call." Other than the fact that the officer learned of

Paragraph 3 also required the defendant "(a) to surrender
1

any keys to [the] residence to the [p]olice; (b) not to damage
any belongings of [E.C.] or any other occupant; (c) not to shut
off or cause to be shut off any utilities or mail delivery to
[E.C.]; and (d) not to interfere in any way with [E.C.'s] right
to possess that residence, except by appropriate legal
proceedings." These additional requirements are not implicated
in this case.
 4

E.C.'s address from the radio call, virtually nothing about the

content of that call was admitted in evidence.2

After the officer received the radio call, he arrived at

E.C.'s address "within [five] minutes may be." Once there, he

observed the defendant standing on the sidewalk outside the

property. He was with other individuals, "like a group of

friends talking." Separating the sidewalk from the property on

which the building was located was a wrought iron fence that was

"about knee high." At no point did the officer see the

defendant inside the fence, or on the walkway or stairs leading

to the building. According to the officer, the point on the

sidewalk on which the defendant was standing was approximately

twenty to twenty-five feet from the front door of the apartment

building in which E.C. lived.3

At the close of the evidence, the defendant moved for a

required finding of not guilty, arguing, among other things,

that there was no evidence that he violated the requirement that

he stay away from E.C.'s residence, and that that provision was

2 The officer was allowed to testify that the call provided
him a description of a man in a plaid shirt, although this was
admitted for the sole purpose of explaining why the officer
approached the defendant when he arrived at the scene.

3 On cross-examination, the officer stated that he believed
the defendant was "about [twenty-five] to [thirty] feet" away
from the front door. Whether the defendant was twenty to
twenty-five feet away, or twenty-five to thirty feet away, is
not material.
 5

void for vagueness. Acknowledging that the order did not

require the defendant to stay a particular distance away from

the residence, the prosecutor argued that the judge could infer

that the defendant was required to stay a "reasonable" distance

away. She also suggested that a reasonable distance would be

one hundred yards (to make it congruent with the express

requirement of the order that the defendant stay one hundred

yards away from E.C.).

The judge rejected the Commonwealth's argument that the

order required the defendant to stay one hundred yards away from

the residence, and he indicated that he thought the defendant's

argument had some force. Nevertheless, the judge ultimately

found the evidence sufficient, stating his view that "as a

matter of law," being twenty-five feet away from the building --

which the judge characterized as "just on the outside of the

property" -- was enough.

Discussion. 1. Sufficiency of the evidence. In reviewing

the sufficiency of the evidence, we consider "whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Here, what

the evidence showed is not in material dispute. Rather, the
 6

determinative question is whether that evidence established that

the defendant violated the requirement that he stay away from

E.C.'s residence, which the order stated included "the entire

apartment building" in which her residence was located.

We do not write on a clean slate. We first addressed what

it means to be required to "stay away from" an identified

residence or workplace more than two decades ago. See

Commonwealth v. O'Shea, 41 Mass. App. Ct. 115, 116 (1996).

There, an individual had obtained a G. L. c. 209A order

requiring that the defendant stay away from her workplace. The

defendant was charged with violating that provision after he had

been observed going into and out of a commercial establishment

separated by a side street from the property on which her place

of work was located. Id. at 117. We rejected the defendant's

contention that the scope of the requirement was limited to the

building in question. Instead, we concluded that it "extends to

all of the property on which the workplace is located[,]

including the adjacent parking lot." Id. at 118. We noted that

this interpretation "create[s] a safe haven for [the protected

person] at her workplace, a place 'in which no further abuse

need be feared.'" Id., quoting Commonwealth v. Gordon, 407

Mass. 340, 347 (1990).
 7

At the same time, in O'Shea, we also rejected the

Commonwealth's argument that being in the mere "vicinity" of the

workplace was enough. As we explained,

"The word 'vicinity,' according to Black's Law Dictionary
(6th ed. 1990), means, 'Quality or state of being near, or
not remote; nearness; propinquity; proximity; a region
about, near or adjacent . . . .' The word is so imprecise
that if we hold that the 'stay away' order means stay away
from the 'vicinity' of the workplace, the order would fail
to meet the requirement that it must be clear."

O'Shea, 41 Mass. App. Ct. at 118. Since the defendant in O'Shea

had not "entered the area of the workplace," id., we concluded

that he therefore could not be found guilty of violating the

order. Id. at 118-119.4

In Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785, 787

& n.3 (2003), the defendant did not enter the workplace from

which he was required to stay away. However, after stopping his

4 In O'Shea, 41 Mass. App. Ct. at 118, we commented that
someone charged with violating a G. L. c. 209A order not only
must be aware of the order's existence but also must have
"clearly and intentionally disobeyed that order in circumstances
in which he was able to obey it." The Supreme Judicial Court
subsequently abrogated that pronouncement. See Commonwealth v.
Delaney, 425 Mass. 587, 597 n.9 (1997), cert. denied, 522 U.S.
1058 (1998). As that court held, one can violate an order
issued pursuant to G. L. c. 209A without specifically intending
to do so, because that statute "requires no more knowledge than
that the defendant knew of the order." Id. at 596. However,
O'Shea otherwise remains good law on the proposition that one
generally cannot be convicted for having violated an order
merely by being in the vicinity of the property on which the
protected residence is located. See Commonwealth v.
Habenstreit, 57 Mass. App. Ct. 785, 787 & n.3 (2003) (citing
O'Shea post-Delaney).
 8

truck twenty to forty feet away from the workplace, he honked

his horn, shouted obscenities, and made a threatening gesture to

those in the workplace. Id. at 786. Concluding that, in this

manner, the defendant had directly intruded into the workplace,

we held that he could be found guilty of violating a stay-away

order even though he had not crossed the property boundary. Id.

at 787.

Taken together, O'Shea and Habenstreit thus recognize two

ways that someone can violate an order to stay away from a

workplace or residence: (1) entering the property on which the

workplace or residence is located, or (2) taking actions that

directly intrude on the workplace or residence. Intrusion in

the latter situation does not require physical encroachment on

the property. Rather, it is sufficient to take actions in close

proximity to the property that have a direct impact inside the

property identified in the stay-away order.

In the case before us, the Commonwealth presented no

evidence that the defendant violated the order in either of

these two ways: there is nothing to suggest that he went onto

the property on which E.C.'s apartment building was located, and

there is no evidence that he was doing anything outside that

property other than talking with friends. The question then is

whether O'Shea and Habenstreit establish the only circumstances

under which a defendant can be found to have violated a stay-
 9

away order, or whether the phrase "stay away from the

plaintiff's residence" also encompasses some other

circumstances.

The word "away" denotes distance -- a distance the

defendant must be "from the residence," but the word "away" does

not give rise to a boundary that is mathematically precise.5

Instead, mindful of the purpose of this aspect of c. 209A

orders, we conclude that a defendant may also be found to have

failed to "stay away" where, although outside the property

boundary, he nonetheless has positioned himself sufficiently

proximate to it that he would be able to abuse or to contact the

plaintiff, in the event that the plaintiff were on the property,

or entering or leaving it.6 See Commonwealth v. Goldman, 94

Mass. App. Ct. , (2018); Commonwealth v. Telcinord, 94

Mass. App. Ct. , (2018). Compare State v. Williams, 226

N.C. App. 393, 410 (2013) ("Certainly the order must mean that

defendant could not be so close . . . that he would be able to

observe her, speak to her, or intimidate her in any way"). We

5 In this case we are construing the c. 209A order, which
requires the defendant to "stay away from the plaintiff's
residence." The statute, c. 209A, uses the term "remain away."
For purposes of construing "away" we perceive no difference
between the terms.

6 The plaintiff need not be present for a violation to
occur. We use the terms "abuse" and "contact" as they are
already defined in the order and the case law.
 10

reach this conclusion based not only on the common understanding

of the phrase "stay away" but also on its meaning within the

specific framework and design of the abuse prevention order --

to provide a "safe haven" "in which no further abuse need be

feared." Gordon, 407 Mass. at 347. O'Shea, 41 Mass. App. Ct.

at 118. We would fail to serve this basic purpose were we to

adopt a standard that allowed a defendant to position him or

herself immediately outside the property boundary, or to stand

in the plaintiff's path, such that the plaintiff was fearful to

leave or return home.7 The standard we have articulated has

limits; it continues to be tethered to the property boundary,

and to places proximate to it.8 Cf. Commonwealth v. Forbes, 86

Mass. App. Ct. 197, 201 (2014) (rejecting textual interpretation

that encompassed "a mathematical precision that was never

intended"). The standard thus fulfils the purpose of the

statute, while still providing a defendant fair notice of what

conduct would violate the order. See, e.g., Commonwealth v.

7 We recognize that the problem is partially ameliorated by
the existence of the other provisions in abuse prevention orders
prohibiting a defendant from abusing, contacting, or coming
within a specific distance of the protected party. However, as
a practical matter, enforcing those provisions typically
requires the testimony of domestic abuse victims, who are often
reluctant to face their abusers.

8 The standard accordingly is consistent with our holding in
O'Shea, that merely being in the "vicinity" of the premises is
not sufficient to violate the "stay-away" provision.
 11

McGhee, 472 Mass. 405, 414 (2015) (judicial construction can

alleviate vagueness concerns).

We turn then to applying that standard here. As noted, the

defendant had placed himself immediately outside the property

boundary and was there long enough to be observed by the person

who called the police, and the defendant remained there until

the officer arrived five minutes later. This evidence was

sufficient to allow the judge to find that the defendant

positioned himself sufficiently proximate to the protected

party's residence that he would have been able to contact or to

abuse her. There accordingly was sufficient evidence to find a

violation of the order.9

2. The notice issue. The defendant next argues that the

Commonwealth failed to prove that he had notice of the c. 209A

order prior to his violation of it on September 22, 2015. The

relevant facts are that the order was initially entered ex parte

on August 25, 2015, and the court scheduled an extension hearing

for September 4, 2015. There were several efforts to serve the

defendant with the temporary order at his home address over the

9 We also reject the defendant's contention that the order
was unconstitutionally vague as applied to the facts here,
because it did not give him sufficient notice that his conduct
was prohibited. The words "stay away" gave sufficiently clear
notice that the defendant could not stand immediately outside
the property boundary. See Commonwealth v. Coppinger, 86 Mass.
App. Ct. 234, 239 (2014); Commonwealth v. Forbes, 86 Mass. App.
Ct. at 201.
 12

several days between August 25 and September 4, none of which

succeeded. The hearing went forward on September 4, 2015,

without the defendant present, at which the order was extended

until September 2, 2016.

The defendant was thereafter served in hand while present

in court on September 11, 2015. This service was established at

trial by the court's docket sheet, which showed that the

defendant was served with a copy of the c. 209A order by a court

officer, in the court house.

The defendant claims that the docket sheet was inadequate

evidence of service, and that in any event reliance upon it to

prove notice violated the confrontation clause. We disagree.

Our cases establish that a court may take judicial notice of its

docket sheet, and that the docket sheet is prima facie evidence

of the events recorded therein. See, e.g., Jarosz v. Palmer,

436 Mass. 526, 530 (2002); Commonwealth v. Reddy, 74 Mass. App.

Ct. 304, 311 (2009); Commonwealth v. Podoprigora, 46 Mass. App.

Ct. 928, 929 (1999). See also Brodin & Avery, Massachusetts

Evidence § 2.8.1 (2018). As such, it is prima facie evidence

that the defendant was served with the c. 209A order on

September 11, 2015.

Moreover, there is no confrontation clause problem in

relying on the docket sheet to prove notice here. Just

recently, in Commonwealth v. McEvoy, 93 Mass. App. Ct. 308, 311-
 13

312 (2018), we explained that the Commonwealth could rely on the

records of the registry of motor vehicles to establish that a

criminal defendant had received notice that his driver's license

had been suspended. We explained that the registry records were

not "testimonial," for confrontation clause purposes, because

the records were "maintained in the normal course of business,"

and because the records were created with "no particular

prosecutorial use in mind." Id. at 315-316 (quotation omitted).

The same is true of the docket sheet here, which is maintained

in the normal course of court business. See Commonwealth v.

Shangkuan, 78 Mass. App. Ct. 827, 831-836 (2011) (return of

service evidencing service on defendant out-of-State was

properly admitted in c. 209A case). Notably, in concluding that

there was no confrontation clause violation, the McEvoy court

also rejected the argument, raised here as well, that the

government record could not be used to prove notice where notice

was "an element of the offense." McEvoy, supra at 316 & n.6.

Likewise, here, the use of a nontestimonial government record

for purposes of proving notice to the defendant was acceptable.10

10In McEvoy, 93 Mass. App. Ct. at 316, this court assumed,
without deciding, that notice of the license suspension was an
element of the offense. In light of the holding in McEvoy, we
similarly do not decide whether notice qualifies as an "element"
here.
 14

Finally, the defendant raises a related argument -- that

the c. 209A order itself was not valid because he did not

receive proper notice and an opportunity to be heard before it

issued. It is true that the Commonwealth did not prove that the

defendant had received notice prior to the issuance of either

the August 25, 2015, or the September 4, 2015, order. The case

law establishes, however, that a conviction of violation of a

c. 209A order is valid as long as the defendant received actual

notice of the order prior to the alleged violation. See

Commonwealth v. Delaney, 425 Mass. 587, 591-593 (1997), cert.

denied, 522 U.S. 1058 (1988) (defendant had actual knowledge of

order, and opportunity to have order vacated, prior to time of

violation). See also Commonwealth v. Melton, 77 Mass. App. Ct.

552, 556 (2010) (actual notice of order and its terms, provided

during telephone conversation, was sufficient to support

conviction). Here the defendant received actual notice of the

order on September 11, 2015, eleven days before he violated it.

He had the opportunity to seek to have the order vacated during

that time. The defendant's reliance on Commonwealth v. Welch,

58 Mass. App. Ct. 408, 409-410 (2003), is accordingly misplaced,

because in that case the defendant did not receive notice of the
 15

order at any time before the alleged violation occurred.11 There

was no due process violation on the facts here.12

Judgment affirmed.

11The defendant argues that an extended c. 209A order is
automatically invalid if the defendant did not receive notice of
the hearing during the period (usually ten days) between the
issuance of the temporary order and the hearing on whether to
extend the order. No case so holds.

12There is no merit to the defendant's contention that the
Commonwealth failed to prove that he was the same Geoffrey
Watson named in the c. 209A order. The testimony of Officer
Stephen McKunes had a proper foundation in personal knowledge,
and was sufficient to establish that while being booked the
defendant himself had provided the information from which his
identity could be confirmed -- including his home address. See
Commonwealth v. Doe, 8 Mass. App. Ct. 297, 299 (1979).