NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1194
COMMONWEALTH
vs.
HAROLD W. PARKER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of
Violation of an Abuse Prevention Order, G. L. c. 209A, § 7, for
sending the victim a sexually explicit video on Facebook. On
appeal, the defendant argues that the judge erred by denying his
motions for required findings of not guilty. He argues that the
evidence presented by the Commonwealth was insufficient to
establish a violation of the 209A order on a particular date,
and insufficient to show that the defendant knew the terms of
the order. He also contends that the judge erred in denying his
request for a bench warrant for a police officer, whom the
defendant had summoned yet failed to appear at trial. We
affirm. Background. The victim and the defendant dated for one
year. On February 25, 2021, the victim obtained an emergency
209A order against the defendant. Although two police officers
unsuccessfully attempted to serve the defendant with the order,
a third officer signed the return of service form on February
26th, and a box was checked indicating that personal service had
been made. At a hearing on March 1, 2021, the victim and the
defendant appeared, and the judge extended the 209A order for
one year. The judge later extended the order again through
March 1, 2023. The order required that the defendant "[not]
contact the plaintiff, in person, by telephone, in writing,
electronically or otherwise."
In October 2021, the defendant sent the victim a Facebook
message that included a video of a man masturbating. The
victim's mother called the police. The victim showed the
investigating officer what the latter described as "a Harold
Parker message, a video of [the defendant's] privates," although
the officer could not remember if he ever watched the video.
The investigating officer did not seize the video, nor did he
seize any accompanying Facebook messages. Rather, the victim
sent the video to the police via email.
At trial, the victim identified the man in the video as the
defendant based on the man's voice and the cabinets in the
2 background. Defense counsel objected to authentication of the
video, arguing that the video did not depict the defendant. The
judge ruled that the witness identified the video and identified
the defendant's voice, which was sufficient to admit the video.
The victim testified on cross-examination about a
subsequent incident that occurred in August 2022, when the
police were called to the victim's house to investigate whether
the defendant violated the 209A order again by arriving outside
her house. A probation officer reviewed the defendant's GPS
monitoring data and determined he did not enter the exclusion
zone. The victim testified at trial that she did not speak with
the police officer who arrived at her home. No evidence
established who called the police in August 2022. The defendant
summonsed the responding officer as a witness to impeach the
victim by showing that she made a false report of a 209A
violation. The officer did not appear at trial and the
defendant requested a bench warrant. The judge denied the
request on the ground that the defendant's offer of proof failed
to establish that the officer would give relevant testimony.
Discussion. 1. Required findings of not guilty. The
defendant moved for required findings of not guilty after the
prosecutor's opening statement and at the close of the
Commonwealth's case-in-chief. See Mass. R. Crim. P. 25 (b) (1)
3 - (2). In reviewing for evidentiary sufficiency, we ask
"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). Inferences
drawn from evidence, including circumstantial evidence, "need
only be reasonable and possible; [they] need not be necessary or
inescapable." Commonwealth v. Woods, 466 Mass. 707, 713 (2014),
quoting Commonwealth v. Merola, 405 Mass. 529, 533 (1989).
a. Opening Statement. The Commonwealth gave a brief
opening statement. The prosecutor told the jury that they would
hear from the victim and the investigating officer. The victim
would testify that she had a restraining order against the
defendant and that he violated it. The investigating officer
would testify that he responded to the victim's house and
investigated the restraining order violation. The prosecutor
explained that the jury would see the explicit video sent by the
defendant. After the Commonwealth's opening statement, the
defendant moved for a required finding of not guilty because the
prosecutor did not allege all the elements of a 209A violation.
Specifically, he argues that because the prosecutor used the
term "restraining order" rather than "abuse prevention order,"
the Commonwealth could not prove the charge. The defendant also
4 alleged that the prosecutor did not explain the terms of the
209A order and did not allege that the defendant knew about the
order.
"The proper function of an opening is to outline in a
general way the nature of the case which the counsel expects to
be able to prove or support by evidence." Commonwealth v.
Kapaia, 490 Mass. 787, 794 (2022), quoting Commonwealth v.
Fazio, 375 Mass. 451, 454 (1978). Although judges may enter a
finding of not guilty after the Commonwealth's opening
statement, such a motion "should be denied unless it clearly
appears from the opening statement that the defendant cannot be
lawfully convicted and then only after the prosecutor has been
made aware of the difficulty and fails or is otherwise unable to
correct it." Commonwealth v. Lowder, 432 Mass. 92, 100-101
(2000), quoting People v. Kurtz, 51 N.Y.2d 380, 385 (1980),
cert. denied, 451 U.S. 911 (1981). The Supreme Judicial Court
explained that a trial judge should enter a finding of not
guilty after the prosecutor's opening statement only under two
instances. Lowder, 432 Mass. at 101. First, when the
prosecutor "clearly and deliberately" states a fact that would
require an acquittal. Id. Second, when the prosecutor outlines
"all operative facts" to be proven at trial, and those facts are
legally insufficient to convict. Id.
5 The prosecutor's opening statement did not fall under
either scenario. The prosecutor did not admit any fact that
precluded a conviction. The use of the term "restraining order"
rather than "abuse prevention order" did not preclude a
conviction. Not only did the judge use the term "restraining
order" in jury instructions, but the Supreme Judicial Court has
routinely used the term to refer to abuse prevention orders
issued under Chapter 209A. See, e.g., Commonwealth v. Walters,
472 Mass. 680, 681 (2015). Second, the opening statement did
not embrace "all operative facts" to be proven at trial. During
the Commonwealth's case-in-chief, the Commonwealth ultimately
introduced evidence that the defendant was served with the 209A
abuse prevention order, which in the light most favorable to the
Commonwealth, established the knowledge element. See
Commonwealth v. Delaney, 425 Mass. 587, 592 (1997), cert.
denied, 522 U.S. 1058 (1998) ("Clearly, a showing that a
defendant was served with a copy of a court order is strong
evidence that a defendant had knowledge that certain conduct
would not be permitted and could result in a criminal
conviction"). The judge did not abuse his discretion in denying
the defendant's motion.
b. Case-in-chief. The defendant moved for a required
finding of not guilty after the Commonwealth rested. The judge
6 denied his motion. On appeal, the defendant makes two
arguments. First, he argues that the Commonwealth's evidence was
insufficient to show that the violation occurred while the 209A
order was in effect. Second, he argues that the Commonwealth's
evidence was insufficient to establish that the defendant knew
about the terms of the 209A order. We reject both arguments.
i. Date of the violation of the 209A order. The victim
testified that she could not remember exactly when her mother
called the police to report the Facebook messages and video, but
that she "believe[d] it was around fall." Later, the prosecutor
asked the victim whether "the date that the police were called,
is that the same day that you received the video," to which she
answered, "Yes."1 The investigating officer testified that he
responded to the victim's home on October 6, 2021. It is
undisputed that the 209A issued on March 1, 2021, and was
renewed on March 1, 2022.
In the light most favorable to the Commonwealth, this
evidence was sufficient to establish that the Facebook messages
were sent when the 209A order was in effect in October 2021. A
rational jury could have inferred that because the victim
testified that she received the Facebook messages on the day the
1 The judge gave the prosecutor permission to ask leading questions on direct examination of the victim, who has autism.
7 investigating officer responded to the victim's home, the
defendant violated the 209A order while it was in effect. The
victim's testimony was sufficient. See Commonwealth v. Gonzalez
Santos, 100 Mass. App. Ct. 1, 3 (2021) (no corroboration or
supporting evidence required where victim's testimony alone
established all elements of crime).
The defendant also contends that the responding officer's
failure to view the Facebook messages and seize them as evidence
means the Commonwealth's case was legally insufficient. This
argument addresses the weight of the evidence, which is "a
matter wholly within the province of the jury.” Commonwealth v.
Martino, 412 Mass. 267, 272 (1992). We discern no error of law.2
2 The defendant does not argue on appeal that the testimony of the officer and the victim regarding the Facebook message was improperly authenticated digital evidence. "An item offered in evidence must be 'what its proponent represents it to be.'" Commonwealth v. Williams, 456 Mass. 857, 868 (2010), quoting Commonwealth v. Nardi, 452 Mass. 379, 396 (2008). When the relevance of digital messages depends on whether the defendant authored them, there must be sufficient evidence to allow a jury to conclude by a preponderance of the evidence that the defendant authored the messages. See Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). Evidence to authenticate digital messages can include "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics." Id. at 447-448, citing Mass. G. Evid. § 901(b)(1), (4) (2011).
"Evidence that the defendant's name is written as the author of an e-mail or that the electronic communication originates from an e-mail or a social networking Web site such as Facebook or MySpace that bears the defendant's name is not sufficient alone to authenticate the electronic
8 ii. Defendant's knowledge. The defendant argues that the
Commonwealth failed to prove that he had knowledge of the 209A
order and its terms. We are not persuaded. The Commonwealth
can prove that the defendant knew of the contents of a 209A
order by showing actual or constructive knowledge of the terms
of the order. See Commonwealth v. Crimmins, 46 Mass. App. Ct.
489, 491 (1999). "Clearly, a showing that a defendant was
served with a copy of a court order is strong evidence that a
defendant had knowledge that certain conduct would not be
permitted and could result in a criminal conviction." Delaney,
425 Mass. at 592. The investigating officer testified that
another police officer personally served the defendant with a
copy of the 209A order. He testified that when an officer
serves someone with an order, the officer typically reads the
defendant the order. The Commonwealth introduced the
defendant's 209A order into evidence, which showed that a police
officer signed the return of service portion of the order and
checked a box stating that "I certify that I have served a copy
communication as having been authored or sent by the defendant."
Id. at 450, citing Williams, 456 Mass. at 868-869. Since this issue was not addressed in the appellate briefing, we do not reach the issue of whether the video was properly authenticated digital evidence. See Travenol Lab., Inc. v. Zotal, Ltd., 394 Mass. 95, 97 (1985) (issue not raised in principal brief not considered).
9 of this Order upon the Defendant named in this Order by . . .
delivering a copy in hand to the Defendant." See Crimmins, 46
Mass. App. Ct. at 491-492 (signed return of service on 209A
order was sufficient for jury to infer knowledge even when no
box is checked denoting method of service). Although the
officer who served the 209A order did not testify at trial, that
officer's testimony was not necessary to authenticate or admit
the document. See Commonwealth v. Shangkuan, 78 Mass. App. Ct.
827, 831-832 (2011) (209A order is admissible, even without
testimony of serving officer, under official or public records
exception to hearsay rule, and its admission does not violate
confrontation clause).
Additionally, the defendant was also present at the court
hearing on March 1, 2021, when the 209A order was extended for
one year. The defendant's presence at the hearing establishes
knowledge. Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 112
n.7 (2014). The defendant's reliance on Commonwealth v. Molloy,
44 Mass. App. Ct. 306 (1998), is unavailing. In Molloy, the
defendant did not appear at annual hearings to extend the 209A
order and the Commonwealth entered no evidence that the
defendant knew of the extensions. Molloy, 44 Mass. App. Ct. at
307-308. Here, the defendant was served with the 209A order and
appeared in court for the extension hearing on March 1, 2021.
10 The judge did not err in denying the defendant's motion for a
required finding of not guilty because the Commonwealth adduced
sufficient evidence that the defendant knew of the 209A order
and its terms.
2. Bench warrant. The defendant argues in the alternative
that he is entitled to a new trial because the judge abused his
discretion by failing to issue a bench warrant for the absent
officer. We review a judge's decision whether to issue a bench
warrant for abuse of discretion. See Commonwealth v. Degrenier,
40 Mass. App. Ct. 212, 215 (1996), citing Commonwealth v. Drew,
397 Mass. 65, 70 (1986). Likewise, we review a motion for a new
trial for abuse of discretion. See Commonwealth v. Jacobs, 488
Mass. 597, 600 (2021). An abuse of discretion results from "a
clear error of judgment in weighing the factors relevant to the
decision, such that the decision falls outside the range of
reasonable alternatives" (quotations and citations omitted).
L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). When the
motion judge was also the trial judge, as here, we accord
"special deference." Commonwealth v. Robertson, 88 Mass. App.
Ct. 52, 59 n.14 (2015).
Criminal defendants have the right under the Sixth
Amendment to the United States Constitution to present witnesses
for their defense and to compel their attendance at trial. See
11 Drew, 397 Mass. at 69-70, citing Washington v. Texas, 388 U.S.
14, 19 (1967). Such a right, however, is not absolute. See
Commonwealth v. Blaikie, 375 Mass. 601, 608-609 (1978) (holding
that defendant's constitutional rights to compulsory process
were not violated where defendant failed to show that witness
"had personal knowledge of relevant factors bearing on the
credibility" of testifying witnesses). When reviewing a judge's
denial of the defendant's request for a bench warrant, we must
determine whether the witness was "necessary to an adequate
defense." Drew, 397 Mass. at 69. Whether a witness is
necessary requires that the judge "consider the proffered
testimony in the light of other evidence." Id. at 70. There
must be a showing that the witness's testimony would be
"relevant, material, and not cumulative." Blaikie, 375 Mass. at
610.
The defendant failed to show that the officer's testimony
would be relevant and material. After the officer failed to
appear, the defendant proffered that the officer's testimony
would come in for impeachment:
"[The victim] had stated that she did not tell the police that [the defendant] came to her house in August of 2022. [The officer] would impeach that by saying, 'I spoke to [the victim], and she reported [the defendant] coming to the house in August of 2022.' So that would impeach her by saying, 'I never told the officer or the police that he came to the house.'"
12 The defendant based his offer of proof solely on the officer's
police report. In the report, the officer wrote that upon
arriving at the victim's house, "I spoke with parties on scene
including the victim [], her brother and witness [] and her
boyfriend []." The officer did not attribute any statements to
the victim, nor did he state who called the police to report the
purported 209A violation.
The police report did not support the line of impeachment
proposed in the offer of proof. The defendant conceded that he
based his offer of proof entirely on the police report because
he did not have the opportunity to interview the officer.
Impeachment by prior inconsistent statement, by its nature,
requires that the witness made a prior statement. The officer
did not attribute any statements to the victim. Based on the
offer of proof and evidence to support it, there would have been
nothing on which to impeach the witness. Drew, 397 Mass. at 70
(gauging whether witness is necessary by "consider[ing] the
proffered testimony in the light of other evidence").
The defendant argues that it is possible that the officer
would testify that the victim called 911 and made a false
report. Yet this contention rests entirely on speculation.
There is no evidence that the officer would have given this
testimony. The defendant cites Commonwealth v. Degrenier,
13 supra, for the proposition that the defendant need not make any
showing that the missing witness "would likely testify as the
defendant hoped." Degrenier, 40 Mass. App. Ct. at 215 n.3
("[w]e are unaware of any requirement upon the defendant in such
circumstances to make a showing by way of affidavit that [the
absent witness] would likely testify as the defendant hoped").
This does not negate the requirement to make a preliminary
showing that the witness was necessary, i.e., that the witness's
testimony would be relevant, material, and non-cumulative. The
judge acted within his discretion to deny the request for a
bench warrant.
On the record available, the officer's impeachment
testimony would be, at best, collateral. See Commonwealth v.
Chase, 372 Mass. 736, 747 (1977) ("Extrinsic evidence on a
collateral matter may be introduced at trial for the purposes of
impeachment only in the discretion of the judge"). The victim
testified at trial that she did not speak with the officer about
the defendant coming to her house in August 2022. In his police
report, the officer wrote that he "spoke with" the victim.
While this testimony might reveal a subtle shift in memory, it
does not bear on the victim's tendency to make a false report of
a 209A violation. This is especially true given that the August
2022 incident occurred after the October 2021 incident involving
14 the Facebook messages and video. If this testimony rose to the
level of impeachment, the judge was within his discretion not to
issue a bench warrant for impeachment on a collateral matter.
There is no indication in the record why the officer failed
to appear at trial. The prosecutor asked the police prosecutor
at Brockton for the officer's whereabouts, and the police
prosecutor was unsure. Although we do not commend the officer's
unexplained failure to appear at trial, we cannot say that the
judge abused his discretion by denying the defendant's request
for a bench warrant.
Judgment affirmed.
By the Court (Neyman, Singh & Toone, JJ.3),
Clerk
Entered: January 28, 2025.
3 The panelists are listed in order of seniority.