Commonwealth v. Fortier

775 N.E.2d 785, 56 Mass. App. Ct. 116, 2002 Mass. App. LEXIS 1219
CourtMassachusetts Appeals Court
DecidedSeptember 27, 2002
DocketNo. 99-P-1346
StatusPublished
Cited by4 cases

This text of 775 N.E.2d 785 (Commonwealth v. Fortier) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Fortier, 775 N.E.2d 785, 56 Mass. App. Ct. 116, 2002 Mass. App. LEXIS 1219 (Mass. Ct. App. 2002).

Opinion

Berry, J.

The issue presented is whether a criminal violation under the abuse prevention statute for “attempting to cause . . . [117]*117physical harm,” G. L. c. 209A, § 1(a),1 requires that the attempt be proved consistent with the elements of proof generally required for attempted criminal offenses, or whether the term “attempting” in this provision of c. 209A has a different meaning. We follow the precedent in Commonwealth v. Gordon, 407 Mass. 340 (1990), which construed a related abuse violation in G. L. c. 209A, § 1, and hold that a § 1(a) abuse violation requires proof consistent with the elements of attempt as applied in similar criminal attempt offenses. Therefore, to establish a criminal violation under G. L. c. 209A, § 7, based on attempted physical harm as defined in G. L. c. 209A, § 1(a), the Commonwealth must prove that (1) there was a valid c. 209A abuse prevention order in effect on the date of the alleged violation; (2) the defendant knew of the order; (3) the defendant had the specific intent to cause physical harm to the victim;2 (4) the defendant undertook an overt act toward the commission of the physical harm; and (5) the overt act was some undertaking that could reasonably be expected to cause the physical harm.3,4 Because the standard for attempting to cause physical harm applied by the trial judge was legally incorr[118]*118ect,5 and because there is insufficient evidence to support a conviction when the correct legal standard is applied, we reverse and order a judgment for the defendant.

1. Background facts. On June 6, 1998, the complainant, Danielle Demers, obtained a G. L. c. 209A protective order against the defendant, her brother-in-law.6 The order was extended to June, 1999. In October, 1998, while at a party, the defendant met Tonya Edwards, one of Demers’s schoolmates. The defendant struck up a conversation with Edwards in which he expressed his ill will toward Demers. He then asked Edwards if she would be willing to beat up Demers. Edwards refused. The defendant heightened his invective, calling Demers a “bitch,” and stating that he wanted to kill Demers. A few days later, Edwards told Demers what the defendant had said. Demers filed a criminal complaint alleging that the defendant had violated the outstanding c. 209A abuse prevention order. In her statement to the police, Demers alleged that Edwards told her that the defendant had called Demers a “crazy bitch” and had said that he was going to kill Demers or, if he did not get to her, he would have someone else do it and pay that person to put her in a hospital.7

2. The trial. The defendant, charged with a violation of the order, elected a jury-waived trial. At the close of the Commonwealth’s evidence, the defendant filed a motion for a required finding of not guilty, asserting that the elements of criminal attempt applied and that there was insufficient evidence [119]*119to meet these elements. The Commonwealth argued that the legal definition of criminal attempt was inapplicable and that a “vernacular” and “literal” meaning of the word attempt should be employed by the trial judge. Confronted by this issue of first impression, the trial judge requested additional briefing and held a further posttrial hearing. After consideration, the judge declined to apply the elements of criminal attempt. He reasoned that, in G. L. c. 209A, § 1(a), attempt is not being referenced in “the conventional criminal sense.” He determined that the term should be construed as a “colloquial expression.” To do that, the judge adopted a dictionary definition of attempt as “mean-png] to make an effort to do something.” Based on that definition, the judge concluded that the defendant’s statements to Edwards reflected “an effort to do [something] in violation of the Restraining Order.” In particular, he focused on the request that Edwards beat up Demers, and he found that such an action constituted an attempt to cause physical harm. Accordingly, the judge entered a guilty finding.

3. The attempt provision in G. L. c. 209A, § 1(a). The elements of proof underlying the abuse offense of attempting to cause physical harm as provided in G. L. c. 209A, § 1(a), have not been directly addressed in the case law. However, following Supreme Judicial Court precedent in a similar matter under c. 209A, we conclude that the legal definition of criminal attempt (see notes 3 and 4, supra, and accompanying text) is appropriately applied to this § 1(a) abuse offense which, like criminal attempt, is predicated on an unsuccessful but affirmative effort at commission of the underlying offense — here, causing physical harm. See Commonwealth v. Purrier, 54 Mass. App. Ct. 397, 401-402 (2002); Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 521 (1995), S.C., 421 Mass. 610 (1996). It is a logical progression in this statutory construction to read § 1(a) in line with criminal attempt offenses, such as the offense of attempted battery. See note 4, supra. “If the language of the statute is ‘fairly susceptible [of] a construction that would lead to a logical and sensible result’ ... we will construe [it] so ‘as to make [it an] . . . effectual piece[] of legislation in harmony with common sense and sound reason.’ ” Commonwealth v. Williams, 427 Mass. 59, 62 (1998), quoting from [120]*120Commonwealth v. A Juvenile, 16 Mass. App. Ct. 251, 254 (1983).

This approach to statutory interpretation has been followed by the Supreme Judicial Court in construing certain of the criminal provisions of G. L. c. 209A. Guided by the legislative purposes underlying the Abuse Prevention Act, which are to provide “a statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse,” Commonwealth v. Gordon, 407 Mass. 340, 344 (1990), and to empower enforcement of the act by criminal sanctions, the Supreme Judicial Court postulated that the Legislature was aware of those particular criminal law antecedents that are similar to the criminal provisions in c. 209A. Thus, in Gordon, the Supreme Judicial Court applied the common law of assault to G. L. c. 209A, § 1(b), which defines the crime of abuse as “placing another in fear of imminent serious physical harm.” Id. at 349. The court held that the particular abuse violation in § 1(b) “closely approximates the common law description of the crime of assault. We must presume that the Legislature was aware of the common law definition of assault when it provided a similar definition for ‘abuse’ in c. 209A .... Accordingly, we turn to the common law treatment of assault for guidance in our examination of c. 209A.” Ibid.

The same analysis applies, and the same principle is true, with respect to the related abuse violation of “attempting to cause . . . physical harm.” G. L. c. 209A, § 1(b). Employing this analysis, we presume that when the Legislature enacted the abuse prevention law, it was aware of the established principles of the common law crime of attempt and the law interstitially developed in construing the attempt statute, G. L. c. 274, § 6. See Commonwealth v. Purrier, supra. Cf. Commonwealth v. Russ R., 433 Mass. 515, 520 (2001) (“Legislature is presumed to be aware of existing statutes when it. . . enacts a new one”).

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Bluebook (online)
775 N.E.2d 785, 56 Mass. App. Ct. 116, 2002 Mass. App. LEXIS 1219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-fortier-massappct-2002.