Commonwealth v. Housen

982 N.E.2d 66, 83 Mass. App. Ct. 174, 2013 WL 264687, 2013 Mass. App. LEXIS 12
CourtMassachusetts Appeals Court
DecidedJanuary 25, 2013
DocketNo. 11-P-1798
StatusPublished
Cited by5 cases

This text of 982 N.E.2d 66 (Commonwealth v. Housen) 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. Housen, 982 N.E.2d 66, 83 Mass. App. Ct. 174, 2013 WL 264687, 2013 Mass. App. LEXIS 12 (Mass. Ct. App. 2013).

Opinion

Grainger, J.

The defendant was convicted by a jury in the Superior Court on thirteen indictments arising out of his attack with a knife on his former girlfriend, Mary Smith,1 and her male friend. On appeal, the defendant argues, inter alla, that (1) the evidence was insufficient to support his convictions of armed assault with intent to murder, (2) his convictions of multiple counts of violating a G. L. c. 209A abuse prevention order2 are duplicative because they resulted from “an unbroken course of conduct,” and (3) one of the convictions of violating a G. L. c. 209A abuse prevention order is duplicative as a lesser included offense of assault and battery in violation of an abuse prevention order under G. L. c. 265, § 13A(b)(iii).

Background. We recite the facts relevant to the issues on appeal as the jury could have found them during the trial. The defendant began dating Smith in 2001. The relationship was intermittently violent. In 2008, after Smith expressed her desire to end the relationship, the defendant assaulted her with a hammer and threatened to kill himself. In 2009, Smith obtained an abuse prevention order (order) after the defendant sent her threatening letters. The order forbade the defendant from coming within fifty yards of Smith or any of her three minor children, ordered the defendant to refrain from abusing Smith, and ordered him to stay away from Smith’s place of work and residence. The order was still in place on January 4 and 5, 2010.

On January 4, 2010, Smith encountered the defendant in the parking lot at her work. She felt sorry for the defendant, who said he was cold and hungry, and drove him to her home around 3:00 p.m. Thereafter, between 4:00 p.m. and 5:00 p.m., each of Smith’s three children arrived home separately. Later in the evening, Smith became scared of the defendant and asked him to leave. The defendant refused. Smith called a friend, Richard Milbum, who arrived and escorted the defendant from the home at approximately 12:30 a.m. Milbum saw the defendant cross [176]*176the street and go “on about his business.” Approximately four hours later, the defendant reentered Smith’s home and attacked Smith and Milbum with a kitchen knife while they were sleeping. The knife was twelve inches in length overall, including a seven-inch blade.

Discussion. 1. Continuing violations. The defendant argues that his violation of the order occurred when he initially contacted Smith in the parking lot of her place of employment, and that his subsequent commission of other acts prohibited by the order (specifically, contact with each child) does not support additional convictions because he simply continued to violate the same order. This approach emphasizes the zone of protection around Smith’s home and workplace created by the order, and deemphasizes the importance of each individual the order seeks to protect. We decline to adopt this view of the abuse prevention statute.

Chapter 209A’s primary goal is to protect individuals from abuse.3 The so-called zone of protection is a mechanism created for the protection of one or more individuals, not for the protection of a residence or job site. Further and independently, the law’s focus on protected individuals requires a defendant subject to an abuse prevention order to vacate a public area when he encounters the plaintiff or plaintiffs. See Commonwealth v. Finase, 435 Mass. 310, 315 (2001); Commonwealth v. Kendrick, 446 Mass. 72, 76 (2006); Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 494 (2002); Commonwealth v. Stoltz, 73 Mass. App. Ct. 642, 646 (2009).

The requirements for the issuance of a protective order place the burden on the plaintiff to prove, by a preponderance of the evidence, that he or she is suffering from abuse as defined in G. L. c. 209A. See Frizado v. Frizado, 420 Mass. 592, 596-597 (1995). A plaintiff seeking an order on the basis of abuse must show that he or she is currently “in fear of ‘imminent serious physical harm,’ ” as well as that the fear is reasonable. Dolían [177]*177v. Dollan, 55 Mass. App. Ct. 905, 906 (2002), quoting from G. L. c. 209A, § 1(b).

In light of the statute’s goal of protecting each individual listed in the order, it was sustainable for the Commonwealth to charge the defendant with multiple counts of violating the order. The defendant correctly concedes that he initially violated the terms of the order when he approached Smith in the parking lot of her workplace. The fact remains that, after going to her home, he had an affirmative duty to leave the premises on each occasion that one of the three minor children arrived at the house. His duty, established by the terms of the order, was not diminished or eliminated because he was already in the house or because other individuals whom the order seeks to protect were already present. By failing to leave, the defendant committed additional and distinct violations of the order.

2. Lesser included offense. The defendant argues that his conviction of violation of the order for assaulting Smith after his return to the house on January 5, 2010 (count 13) must be overturned because it was a lesser included offense of his conviction of assault and battery in violation of an abuse prevention order under G. L. c. 265, § 13A(b)(iii) (count 6).

In determining whether one offense is a lesser included offense of another for double jeopardy purposes, we apply the “long-prevailing test in this Commonwealth!, which] is whether each crime requires proof of an additional fact that the other does not.” Commonwealth v. Crocker, 384 Mass. 353, 357 (1981), quoting from Commonwealth v. Jones, 382 Mass. 387, 393 (1981). See Morey v. Commonwealth, 108 Mass. 433, 434 (1871). “If so, neither crime is a lesser included offense of the other.” Commonwealth v. Crocker, supra, quoting from Commonwealth v. Jones, supra.

Undeniably, G. L. c. 265, § 13A(b)(iii), prohibiting assault and battery in violation of an abuse prevention order, contains an element — assault and battery — not necessary to secure a conviction simply of violation of a c. 209A order. In order also to prove the converse, the Commonwealth asserts that it did not need to prove that the defendant violated the order in order to secure a conviction of assault and battery in violation of the [178]*178order. Thus, according to the Commonwealth, each offense includes an element that the other does not.

General Laws c. 265, § 13A(b)(iii), does not require the explicit identification of every element of the criminal offense that must be proved separately by the Commonwealth.4 *Inevitably, an assault and battery upon a person covered by an abuse prevention order will result in a violation of the order. However, it is possible to violate an abuse prevention order in myriad ways, so that a defendant can commit assault and battery on a person while simultaneously violating an abuse prevention order by failing to obey a stricture unrelated to the physical attack. That stricture, in turn, can supply an element that is not required to prove the assault and battery charge. We therefore reject the defendant’s argument that violation of a c. 209A order is, in itself, a lesser included offense of assault and battery in violation of an abuse prevention order.5

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Bluebook (online)
982 N.E.2d 66, 83 Mass. App. Ct. 174, 2013 WL 264687, 2013 Mass. App. LEXIS 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-housen-massappct-2013.