Commonwealth v. Telcinord

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17-P-1050 Appeals Court

COMMONWEALTH vs. ELISABETH TELCINORD.

No. 17-P-1050.

Norfolk. February 7, 2018. - October 17, 2018.

Present: Trainor, Blake, & Lemire, JJ.

Abuse Prevention. Protective Order. Practice, Criminal,
Instructions to jury. Arrest. Words, "Stay away."

Complaint received and sworn to in the Quincy Division of
the District Court Department on August 5, 2016.

The case was heard by Mark S. Coven, J.

Meredith Shih for the defendant.
Marguerite T. Grant, Assistant District Attorney (Sean P.
Riley, Assistant District Attorney, also present) for the
Commonwealth.

TRAINOR, J. After a jury trial in the Quincy Division of

the District Court Department, the defendant, Elisabeth

Telcinord, was convicted on a criminal complaint charging her

with one count of violating an abuse prevention order pursuant
 2

to G. L. c. 209A, § 7.1 On appeal, the defendant argues that (1)

there was insufficient evidence that she violated the stay-away

provision of the order; (2) the judge's instruction to the jury

to use their common understanding of the phrase "stay away from

the plaintiff's residence" when the jury asked for a legal

definition was error; and (3) testimony about the defendant's

arrest created a substantial risk of a miscarriage of justice.

We affirm the judgment.

On August 3, 2016, the Brockton Division of the District

Court Department issued a G. L. c. 209A abuse prevention order

directing the defendant to stay at least fifty yards away from

the victim, not contact him, stay away from his workplace, and

stay away from his residence located at 13 Hall Street in

Randolph.2

At 8:15 P.M. on August 4, 2016, a Brockton police officer

served the defendant with a copy of the c. 209A order in hand.

At about 3 A.M. on August 5, 2016, a Randolph police officer was

dispatched to Hall Street. The officer drove on North Main

1 The defendant was sentenced to one year of probation with
the condition that she complete a batterer's program.

2 The Commonwealth did not proceed against the defendant for
a violation of the no-contact portion of the order.
 3

Street, turned onto Hall Street, and parked his marked cruiser

at 15 Hall Street.3

The officer observed two vehicles drive onto Hall Street

from North Main Street. The first vehicle was driven by a man,

later identified as the victim and the subject of the abuse

prevention order. The second vehicle was operated by the

defendant and was traveling about three car lengths behind the

victim's vehicle. As the vehicles approached the cruiser, the

defendant pulled her vehicle over to the right side of the

street and stopped. The victim stopped his vehicle in front of

the cruiser and got out to speak to the officer, who described

the victim as "upset." The officer thereafter drove his cruiser

back to the defendant's vehicle to speak with her.4

The defendant told the officer that "she thought that she

was in compliance with the order by the distance she was away

from the [victim's] house." She also said that she was married

to the victim, and admitted that she was following him; she was

trying to deal with a family issue involving the victim having

contacted her father. The officer described the defendant as

3 Hall Street is a residential street of mostly single-
family homes. The street is not a "cut-through," and has
minimal traffic -- "mostly people who live on the street."

4 Based on the testimony and exhibits submitted at trial, we
infer that the distance to the defendant's vehicle was very
short. The officer presumably wanted to keep his cruiser close
to him.
 4

"upset." The officer spoke again with the victim, who was still

upset, and then returned to the defendant's vehicle and arrested

her. She identified herself by name, birthdate, and address at

the booking.

Discussion. 1. Statutory framework. The Legislature

enacted G. L. c. 209A in 1978. The original version of G. L.

c. 209A, § 7, criminalized only a defendant's violation of an

order to "refrain from abus[e]" or "vacate the household." See

St. 1983, c. 678, § 5. In 1990, the Supreme Judicial Court

considered the question whether a trial court judge's order

requiring the defendant to "leave and remain away from the

[marital household]" was authorized under the statute, because

the statute, at that time, only contained the provision to

"vacate forthwith the household." Commonwealth v. Gordon, 407

Mass. 340, 344-345 (1990). The defendant argued that the order

could only be violated by failing to vacate the household, and

not by his returning to visit it. Id. at 345-346. The court

concluded that the defendant had misconstrued the purpose and

scope of the term "vacate" as used in G. L. c. 209A.5,6 Id. at

346-348.

The Legislature acted quickly and, in agreement with the
5

court, enacted St. 1990, c. 403, § 2, which amended G. L.
c. 209A, § 1, to define "vacate order" as a "court order to
leave and remain away from the premises . . ." (emphasis added).
General Laws c. 209A, § 3 (c), as amended by St. 1990, c. 403,
§ 3, allows the court to "[order] the defendant to vacate
 5

The court proceeded to elaborate on the harm that the

Legislature was attempting to prevent, and why it was essential

that the defendant be required to stay away from the residence

and workplace of the victim.

"An order to 'vacate the household' . . . creates a haven
for the abused party in which no further abuse need be
feared and provides a temporary, partial separation of the
abused and abusive party, thereby leaving fewer
opportunities for abusive contact.

"Were we to adopt the defendant's definition of 'vacate,'
an abusive party, having surrendered occupancy of the
household, would be free to return to the house at will.
The abused party would have no ability to lessen the
abusive party's prerogative to initiate contact and could
expect no refuge from the possibility of further abuse.
That the Legislature intended the word 'vacate' to include
the concept of 'remain away' is demonstrated by the

forthwith and remain away from the household, multiple family
dwelling, and workplace" (emphasis added).
6 "In determining the range of activity the Legislature

intended to prohibit by authorizing courts to issue orders
requiring defendants to 'vacate' the marital home, this court
must look to the words of the statute 'construed by the ordinary
and approved usage of the language, considered in connection
with the cause of [the statute's] enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished.' . . . Chapter 209A, while allowing an order to
'vacate,' provides no particular definition for the term.
Webster's New Int'l Dictionary 2810 (2d ed. 1957) defines
'vacate' as '3. [t]o make vacant, as an office, post, house,
etc.; to deprive of an incumbent or occupant.' While this
definition makes clear the fact that the Legislature intended an
abusive defendant to depart from the house, it provides no
guidance in either a negative or affirmative direction whether
the Legislature intended to require such a defendant to stay
away from the house subsequent to the initial departure. The
Legislature's intention, however, becomes clear when we consider
the 'mischief or imperfection' with which c. 209A is concerned
and 'the main object' which c. 209A seeks to accomplish."
Gordon, 407 Mass. at 346.
 6

authority of a judge to issue a 'vacate' order for a period
of one year. G. L. c. 209A, § 3 (b)."

Id. at 347.

The Gordon court read into the statutory language the

requirement that the defendant not only vacate the residence but

also remain away from it. The Legislature responded by amending

the statute and making the court's interpretation explicit in

the statutory language. See note 5, supra. The purpose of this

interpretation, significantly, is the recognition of the core

purpose of an abuse prevention order, that is, the creation and

maintenance of a safe haven from the threat of continued abuse.

To establish a violation of G. L. c. 209A, § 7, the

Commonwealth must prove that (1) a valid G. L. c. 209A order was

issued by a judge, (2) the order was in effect on the date of

the alleged violation, (3) the defendant had knowledge of the

order, and (4) the defendant violated the order. See

Commonwealth v. Collier, 427 Mass. 385, 388 (1998); Commonwealth

v. Delaney, 425 Mass. 587, 595-597 (1997), cert. denied, 522

U.S. 1058 (1998). Only the fourth requirement is in dispute

here, i.e., whether the defendant violated the order.

2. Stay away. The defendant argues that the phrase "stay

away" is so vague that without the judge defining specific

geographic boundaries for the meaning of "stay away," the jury
 7

were allowed to speculate in reaching their decision on an

essential element of the crime.7

Our courts have not required this kind of mathematical

specificity in order to find a statute enforceable and a

defendant's due process rights protected. In Commonwealth v.

Bohmer, 374 Mass. 368, 369 (1978), the Supreme Judicial Court

addressed a similar issue where the defendants challenged their

convictions of wilfully interrupting or disturbing a school in

violation of G. L. c. 272, § 40.8 The defendants contended that

the statute was unconstitutionally vague and therefore void, and

that their convictions under the statute were denials of their

right to due process under the Fourteenth Amendment to the

United States Constitution. Id. at 371. The court answered

their contentions while upholding the constitutionality of the

statute.

"Due process requires that a criminal statute be
sufficiently clear to give notice of the conduct that it
prohibits. A statute which either forbids or requires the
doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and

7 The defendant's reliance on Commonwealth v. O'Shea, 41
Mass. App. Ct. 115, 118 (1996), overruled on other grounds,
Delaney, 425 Mass. at 597 n.9, is misplaced, as we do not agree
that it established the outer boundary of the meaning of "stay
away."

8 General Laws c. 272, § 40, was rewritten by St. 2018,
c. 69, § 159, to prohibit the interrupting and disturbing of "an
assembly of people meeting for a lawful purpose." This
amendment, however, does not affect the holding in the Bohmer
opinion.
 8

differ as to its application, violates the first essential
of due process of law. Due process requirements also
mandate that no statute have such a standardless sweep that
arbitrary and discriminatory enforcement by the police and
the courts is permitted. It would certainly be dangerous
if the [L]egislature could set a net large enough to catch
all possible offenders, and leave it to the courts to step
inside and say who could be rightfully detained, and who
should be set at large.

"However, since words are the elements that constitute a
statute, mathematical precision in the definition of
legislative enactments is not required. A statute is
satisfactory so long as it clearly indicates what it
prohibits as a whole. . . . Uncertainty as to whether
marginal offenses are included within the coverage of a
statute does not render it unconstitutional if its scope is
substantially clear." (Citations and quotations omitted.)

Id. at 371-372.

In Commonwealth v. Orlando, 371 Mass. 732, 733-736 (1977),

the court previously addressed this principle when upholding the

constitutionality of G. L. c. 272, § 53, which provides

punishment for disturbers of the peace.9

"A law is unconstitutionally vague if it is not
sufficiently explicit to give clear warning as to
proscribed activities. Commonwealth v. A Juvenile, 368
Mass. 580, 586-587 (1975). Connally v. General Constr.
Co., 269 U.S. 385, 391 (1926). A law is not vague,
however, if it requires a person to conform his conduct to
an imprecise but comprehensible normative standard so that
men of common intelligence will know its meaning.
Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973). Coates v.
Cincinnati, 402 U.S. 611, 614 (1971). Moreover, even when
the outer boundaries of a law are imprecise, such
imprecision does not permit a facial attack on the entire
law by one whose conduct 'falls squarely within the "hard
core" of the [statute's] proscriptions,' [Broadrick,

9 The statute "proscribes conduct which tends to annoy all
good citizens and does in fact annoy anyone present not favoring
it." Orlando, 371 Mass. at 734.
 9

supra], particularly if greater specificity in the law is
impractical." (Emphases added.)

Id. at 734.

Approximately fifty per cent of our country's State

Legislatures have adopted the general "stay away" from a

specified location provision in their domestic violence

prevention statutes.10 Various States use different phraseology

for their general stay-away provisions but all result in the

same prohibition. Arizona, for example, prohibits "coming near"

the residence (or place of employment or school), Ariz. Rev.

Stat. Ann. § 13-3602 (2018); Texas prohibits "going to or near

the residence or place of employment," Tex. Fam. Code Ann.

§ 85.022(b)(3) (2017); Louisiana prohibits "going near the

residence or place of employment," La. Rev. Stat. Ann.

§ 46:2135(A)(1) (2018); and Maine prohibits "[b]eing at or in

the vicinity of" the plaintiff's residence, place of employment,

or school. Me. Rev. Stat. Ann. tit. 19-A, § 4007(1)(C)(2)

(2017).

10Those States requiring a specified distance have either
specified a distance in the statute, left it entirely to the
discretion of the judge, or both. Idaho and Montana, for
example, specify that a defendant must stay 1,500 feet away from
the plaintiff's residence or other specified location, or any
other appropriate distance. See Idaho Code § 39-6306(1)(i)
(2018); Mont. Code Ann. § 40-15-201(2)(d) (2017). Washington
has upheld a one-mile stay-away order, see State v. Chapman, 140
Wash. 2d 436, 451, cert. denied, 531 U.S. 984 (2000); Wash. Rev.
Code § 26.50.060(1)(c) (2018), while Kentucky has required that
a stay-away order not exceed 500 feet. Ky. Rev. Stat. Ann.
§ 403.740(1)(a)(3) (2018).
 10

States have interpreted the meaning of, and the parameters

of, "stay away" from a fixed location. In State v. Williams,

226 N.C. App. 393, 408 (2013), the court distinguished between a

domestic violence protective order prohibiting the defendant

from visiting the protected person's workplace and a more

general domestic violence protective order requiring the

defendant to stay away from the protected person's workplace.

"[W]here a court orders a defendant to 'stay away' from a
particular location, it does so to prevent the defendant
from threatening, abusing, following, interfering with, or
harassing the protected party. It is possible that a
defendant may not actually set foot upon the workplace
premises but could harass or interfere with a victim by
lurking so near as to impede the victim's ability to travel
from place to place -- indeed, defendant herein did just
that several times . . . -- but the area to 'stay away'
from is not without boundaries. . . . The indictment
alleges defendant was 'outside' [the protected person's]
workplace, and although technically the area 'outside of
[the protected person's] workplace could include any place
in the world outside the walls of the salon, obviously such
an interpretation is absurd. Certainly the order must mean
that defendant could not be so close to [the protected
person's] workplace that he would be able to observe her,
speak to her, or intimidate her in any way, but we cannot
define the exact parameters of the term 'stay away.'"

Id. at 409-410.11,12

11Notably, the defendant's conviction in Williams was
reversed for a number of reasons, including that there was
insufficient evidence to show that the defendant had violated
the stay-away order or any of the order's purposes as discussed
by the court. Williams, 226 N.C. App. at 411-412.

12In Residences at the Jewel, LLC vs. Tiedeman, Minn. Ct.
App., No. C5-03-45 (Aug. 5, 2003) (unpublished decision), the
court considered the question whether a defendant could be
ordered to stay away from a location directly across the road
from where he lived. The defendant argued that the stay-away
 11

Our case law is replete with examples of upholding

statutory language that is not precise but nevertheless

"requires a person to conform his conduct to an imprecise but

comprehensible normative standard so that men of common

intelligence will know its meaning." Orlando, 371 Mass. at 734.

For example, in Orlando, we applied a two-pronged test to define

what is disruptive conduct pursuant to G. L. c. 272, § 53. See

id. at 734-735. General Laws c. 272, § 53, prohibits conduct,

"which, first, most people would find to be unreasonably

disruptive, and second, [which] did in fact infringe on

someone's right to be undisturbed. The first prong is normative

and protects potential defendants from prosecutions based on

order was "vague and overbroad." He argued that because he
lived directly across the road from the plaintiffs, it was "not
feasible" for him to stay away, and claimed that he was "running
the risk of contempt by simply staying in his home or, more
seriously, every time he ventures out from his property onto
[the road]." The court's answer to this alleged problem is an
illustration of how a general stay-away order can be
appropriately flexible when a specific distance would be
inappropriate and unworkable.

"As [the plaintiffs] assert, 'common sense dictates that
the "stay away" language . . . does not apply to one who is
in his own house, or to one who is simply using a public
road to get to and from his own house.' [The defendant's]
reading of the language is an unreasonable interpretation,
in light of the fact that there is a county road between
the [plaintiffs'] property and [the defendant's] home and
those of his neighbors. [The defendant] continues to drive
the road regularly and has encountered [the plaintiffs] in
a civil manner since the order was issued. He has never
been found in contempt. We conclude that the language
'stay away' is not overly broad or vague in this context."
 12

unreasonable individual sensitivities. The second prong

requires that the crime have a victim, and thus subjects

potential defendants to criminal prosecution only when their

activities have detrimental impact." Id. at 735.

"A more specific standard is impractical because the
conduct proscribed by this law necessarily varies according
to its location and timing. . . . A disturbing the peace
standard which attempted to define more precisely the
levels of noise and types of conduct permitted in various
places at varying times would be both underinclusive and
overbroad. The void for vagueness doctrine does not
require this result. Rather, for offenses such as this, it
permits the use of a normative standard which informs a
potential defendant that his common sense in most cases
will define proscribed conduct" (emphasis added).13

Id.

Similar statutes have withstood challenges for vagueness.
13

See Commonwealth v. Sullivan, 469 Mass. 621, 630 (2014), quoting
Commonwealth v. Reyes, 464 Mass. 245, 249 (2013) (addressing
accosting or annoying person of opposite sex in violation of
G. L. c. 272, § 53; "legislative language need not be afforded
'mathematical precision' in order to pass constitutional
muster'"); Commonwealth v. Daly, 90 Mass. App. Ct. 48, 51
(2016), quoting Orlando, 371 Mass. at 734 (animal cruelty
statute, G. L. c. 272, § 77, "sets forth a perhaps 'imprecise
but comprehensible normative standard'" which is sufficiently
exacting when viewed in context and in conjunction with case
law); Commonwealth v. Nee, 83 Mass. App. Ct. 441, 449-450 (2013)
(addressing common-law crime of affray; "person of common
intelligence would have little difficulty understanding" conduct
that law proscribes). Similar analysis and results have
occurred regarding the interpretation of reckless endangerment
of a child under G. L. c. 265, § 13L, see Commonwealth v.
Figueroa, 83 Mass. App. Ct. 251, 265-266 (2013); open and gross
lewdness and lascivious behavior under G. L. c. 272, § 16, see
Commonwealth v. Coppinger, 86 Mass. App. Ct. 234, 235-239
(2014); and indecent assault and battery on a child under the
age of fourteen under G. L. c. 265, § 13B, see Commonwealth v.
Rosa, 62 Mass. App. Ct. 622, 626-627 (2004).
 13

There certainly will be circumstances involving location

and timing, within which a specific distance to stay away from a

fixed location will be adequate to maintain a safe haven for the

protected party. However, there are certainly also locations

within which a general stay-away order is more appropriate to

provide a safe haven for the protected party. The person

ordered to stay away is required to conduct themselves so as not

to contact or abuse the protected party.14

We do not think that the preferred practice should be to

require the trial judge to determine a specific distance that

the abuser must stay away from the protected person's residence

or workplace. Rather, the decision whether to impose a specific

distance, if any, should be left to the sound discretion of the

trial judge, who is in the best position to determine what the

14A defendant in Pennsylvania challenged, for vagueness,
the statute punishing the failure of a disorderly person to
disperse upon official order. See Commonwealth v. DeFrancesco,
75 Pa. D. & C. 2d 502, 508 (1975). The defendant argued that he
could not know "when he ha[d] satisfactorily dispersed." Id.
The court held that adequate dispersal occurs "when he is no
longer a threat to cause substantial harm, serious
inconvenience, annoyance or alarm. The time and distance may
vary under the particular circumstances surrounding the
incident, but we believe that it is clear to any person of
reasonable intelligence that he has not dispersed if he remains
in a position that poses the threat and danger the statute seeks
to prevent." Id.
 14

circumstances require to create a safe haven for the protected

party.15

Here, the defendant argues that the stay-away order could

only be violated by her intruding onto the property of the

victim's residence.16 We reject this contention. When the

defendant drove her vehicle onto Hall Street and parked near and

in clear sight of the victim's residence at 3 A.M., it seems

clear that she intended to confront the victim.17 Her presence

15We consider, here, a judicial order requiring the
defendant to "stay away from the plaintiff's residence." The
statute, G. L. c. 209A, § 3 (c), allows the court to order the
defendant "to vacate forthwith and remain away from the
household." For the purpose of our construction of the
legislative purpose of c. 209A, we perceive no difference
between the terms "stay away from" and "remain away from." Both
terms promote the core purpose of the abuse prevention order and
the statute, to create and maintain a safe haven from the threat
of continued abuse. See Gordon, 407 Mass. at 346-347.

16The defendant seems to be arguing that the stay-away
order could only be violated by means of a criminal trespass.
Such an argument fails simply because the Legislature has
enacted two separate and distinct statutes, i.e., criminal
trespass (G. L. c. 266, § 120) and abuse prevention (G. L.
c. 209A, § 3), which serve to effectuate different purposes.
See generally State v. Gilley, 135 N.C. App. 519, 527-530 (1999)
(distinguishing between North Carolina's domestic criminal
trespass statute and domestic violence protective order statute
while analyzing double jeopardy clause).

17"While intent is an element of criminal contempt
proceedings," G. L. c. 209A, § 7, has no such requirement.
Delaney, 425 Mass. at 596. A conviction of violating an order
issued pursuant to c. 209A requires proof "beyond a reasonable
doubt that the defendant knew of the order. . . . Th[e] statute
. . . requires no more knowledge than that the defendant knew of
the order. We decline to read any additional mens rea
requirements into the statute." Id. at 596-597. However, "[a]
 15

on the victim's street near the victim's residence was not an

accident, mistake, or otherwise the result of innocent conduct.

This conduct violated the c. 209A order's directive to stay away

from the victim's residence.

Next, the defendant argues that the judge committed

reversible error when he provided the supplemental instruction

in response to the jury's question regarding the "legal

definition of stay away from the plaintiff's residence." Where,

as here, the defendant failed to object to the instruction at

trial, we review the instruction to determine whether any error

in the instruction created "a substantial risk of a miscarriage

of justice." Commonwealth v. Freeman, 352 Mass. 556, 564

(1967).

"The proper response to a jury question must remain within

the discretion of the trial judge, who has observed the evidence

and the jury firsthand and can tailor supplemental instructions

accordingly." Commonwealth v. Monteagudo, 427 Mass. 484, 488

(1998), quoting Commonwealth v. Waite, 422 Mass. 792, 807 n.11

long-standing common law principle requires that, in the absence
of specific words saying so, it is not supposed that the
[L]egislature intended to make accidents and mistakes crimes"
(quotation omitted). Collier, 427 Mass. at 388. "The policies
that are advanced by means of the remedies available under
c. 209A do not require that restrained parties be convicted for
what would generally be considered innocent activities. To hold
otherwise would incorporate into the statute a concept of strict
liability, and there is no basis for believing that this was the
Legislature's purpose." Commonwealth v. Raymond, 54 Mass. App.
Ct. 488, 493 (2002).
 16

(1996). Here, even if the instruction was error, it did not

create a substantial risk of miscarriage of justice.

In the future, however, it would be better practice for the

judge to explain to the jury what the stay-away order is

intended to accomplish. Such instruction would assist the jury

in applying their common experience, in determining whether the

defendant has violated the purpose of the order. The distance

will vary under different circumstances and can only be

determined, as will a violation of the order, by what is

necessary to prevent the defendant from contacting or abusing

the protected party.18 The stay-away order is violated not only

when a defendant actually commits an act of contacting or

abusing the protected party, but also when the defendant is

positioned within sufficient proximity to the property so that

he would be able to contact or abuse the protected party if that

party were on the property or entering or leaving it. See

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

Commonwealth v. Watson, 94 Mass. App. Ct. , (2018). The

protected party need not be present for a violation of the order

to occur.

3. Arrest testimony. Finally, we conclude that there is

no merit in the defendant's contention that testimony about her

18Each of these prohibitions can be accomplished, under the
circumstances, by the potential for physical, visual, or vocal
contact.
 17

arrest created a substantial risk of a miscarriage of justice.

The police officer testified that he arrested the defendant, and

that at the defendant's booking she gave her name, birthdate,

and address. The officer identified the defendant by comparing

her appearance to her registry of motor vehicles photograph.

See Commonwealth v. Crayton, 470 Mass. 228, 242 (2014)

(identification testimony of arresting officer admissible to

prove defendant "is the person who was arrested for the charged

crime"). The defendant also attacked the adequacy of the police

investigation, thereby placing her arrest at issue. See

Commonwealth v. Mitchell, 89 Mass. App. Ct. 13, 27 (2016);

Commonwealth v. Philyaw, 55 Mass. App. Ct. 730, 733 (2002)

("officer should not be put in the false position of seeming

just to have happened upon the scene," but should be allowed to

explain conduct [quotation omitted]). Finally, the judge's

instructions would have countered any possible prejudice that

could have flowed from evidence of the defendant's arrest. The

judge instructed the jury on the presumption of innocence on

three separate occasions. He specifically instructed that "[a]

complaint against the defendant's [sic] only an accusation.

It's not evidence." There was no substantial risk of a

miscarriage of justice here.

Judgment affirmed.