NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
23-P-484 Appeals Court
COMMONWEALTH vs. ROBERT A. SABIN.
No. 23-P-484.
Plymouth. January 11, 2024. - June 20, 2024.
Present: Rubin, Ditkoff, & Grant, JJ.
Parental Kidnapping. Practice, Criminal, Required finding. Statute, Construction. Time. Evidence, Court record, Relevancy and materiality. Judgment. Words, "Protracted period."
Complaint received and sworn to in the Plymouth Division of the District Court Department on February 11, 2021.
The case was tried before James M. Sullivan, J.
Christopher DeMayo for the defendant. Johanna Black, Assistant District Attorney, for the Commonwealth.
DITKOFF, J. The defendant, Robert A. Sabin, appeals from
his conviction, after a District Court jury trial, of parental
kidnapping, G. L. c. 265, § 26A. The defendant kept his five
year old child after his weekend of parenting time, intending to
take the child on vacation to an amusement park in New Jersey 2
for six days. Concluding that the jury could find that six days
was a protracted period of time under the circumstances here,
and that the admission of an uncertified Probate and Family
Court judgment, if error, did not prejudice the defendant, we
affirm.1
1. Background. The mother and the defendant shared legal
custody of their five year old son pursuant to a judgment from a
Probate and Family Court judge, following a trial in that court.
The judgment gave the mother sole physical custody of the child,
except that the defendant was allowed parenting time every other
weekend from Friday at 5 P.M. until Sundays at 6 P.M., as well
as two hours each Wednesday evening. The mother would
occasionally pick the child up at 8 P.M. on Sunday when the
defendant had not exercised his two-hour parenting time on the
preceding Wednesday.
The defendant wanted to take the child on a six-day
vacation to an amusement park in New Jersey. Thrice, the
defendant texted the mother about his planned vacation. On
November 26, 2019, he wrote, "July 26 2020 to aug 1st 2020 ill
be taking [the child] on vacation." On January 3, 2020, he
wrote, "Think i told you but i got the approval. 7/26-8/1 2020.
1 As we discuss infra, the parental kidnapping statute, G. L. c. 265, § 26A, punishes not only a person who unlawfully "holds" a child for a protracted period of time, but also one who "intends to hold" a child for a protracted period of time. 3
Taking [the child] on vacation." And on June 30, 2020, he
wrote, "Just 3rd heads up 7-26 to 8-1 taking [the child] on
vaca," to which the mother replied in part, "You don't have a
week vacation to take him in our court order and I'm not
agreeing to that. I don't know why you think you can just
decide something against our order and do what you . . . ."2
Around 2 P.M. on Sunday, July 26, 2020, the mother texted
the defendant about picking the child up that evening, and the
defendant told her that "he was not going to be giving [the
child] back to [her], that he planned on taking [the child] out
of state to go on vacation." She told the defendant that she
"was not in agreeance to that."
When she went to pick up the child that evening, neither
the child nor the defendant was there. She tried to call the
defendant multiple times, but he did not answer. She contacted
the police.
Initially, the police were unable to reach the defendant,
so an officer left a voice mail message. Later that night, the
defendant called the officer back. The officer explained that
he had called to "check the wellbeing of the child" because
there appeared to be "a probate order in effect" saying that the
child "was supposed to be in [the mother's] custody at that
2 The remainder of the mother's text message is not visible in the screenshot of the message that was admitted at trial. 4
point." The defendant told the officer that "he knew he was in
violation of the order, but that it was something he would deal
with -- the contempt of which he would deal with at another
time." At this point, the defendant was in Connecticut, about
three hours from New Jersey. The officer told the defendant
that the defendant "was likely committing a criminal offense,"
and "suggest[ed] that he return with the child." The defendant
told the officer that he would call back again.
The defendant called again and told the officer that he
would be returning with the child that evening. The defendant
returned with the child at approximately 1:05 A.M.
2. Sufficiency of the evidence. a. Standard of review.
Where, as here, a sufficiency of the evidence challenge is based
on statutory interpretation, we begin our review with
interpreting the statute at issue. "Our primary duty in
interpreting a statute is 'to effectuate the intent of the
Legislature in enacting it.'" Commonwealth v. Sousa, 88 Mass.
App. Ct. 47, 49 (2015), quoting Campatelli v. Chief Justice of
the Trial Court, 468 Mass. 455, 464 (2014). "The language of
the statute is the starting point for all questions of statutory
interpretation." Bank of N.Y. Mellon v. Morin, 96 Mass. App.
Ct. 503, 507 (2019), quoting Retirement Bd. of Stoneham v.
Contributory Retirement Appeal Bd., 476 Mass. 130, 135 (2016).
"If the language is 'clear and unambiguous, it is to be given 5
its "ordinary meaning."'" Commonwealth v. Mansur, 484 Mass.
172, 175 (2020), quoting Commonwealth v. Soto, 476 Mass. 436,
438 (2017). "We review questions of statutory interpretation de
novo." Wallace W. v. Commonwealth, 482 Mass. 789, 793 (2019),
quoting Millis Pub. Sch. v. M.P., 478 Mass. 767, 775 (2018).
After we discern the meaning of the underlying statute,
"[w]e consider the evidence introduced at trial in the light
most favorable to the Commonwealth, and determine whether a
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Commonwealth v.
Lagotic, 102 Mass. App. Ct. 405, 407 (2023), quoting
Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 216 (2019). "The
inferences that support a conviction 'need only be reasonable
and possible; [they] need not be necessary or inescapable.'"
Commonwealth v. Howe, 103 Mass. App. Ct. 354, 357 (2023),
quoting Commonwealth v. Wheeler, 102 Mass. App. Ct. 411, 413
(2023).
b. "Protracted period" of time. For ordinary kidnapping
under G. L. c. 265, § 26, no particular period of confinement is
necessary. Rather, "[a]ny restraint of a person's liberty is a
confinement or an imprisonment." Commonwealth v. Dykens, 438
Mass. 827, 841 (2003). For example, "the act of forcing the
victim into [an] alley, though admittedly brief, was nonetheless
sufficient" to support a kidnapping conviction. Commonwealth v. 6
Wilcox, 72 Mass. App. Ct. 344, 350 (2008). Accord Commonwealth
v. Lent, 46 Mass. App. Ct. 705, 706, 710 (1999) (defendant
controlled victim's movements for one block).
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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
23-P-484 Appeals Court
COMMONWEALTH vs. ROBERT A. SABIN.
No. 23-P-484.
Plymouth. January 11, 2024. - June 20, 2024.
Present: Rubin, Ditkoff, & Grant, JJ.
Parental Kidnapping. Practice, Criminal, Required finding. Statute, Construction. Time. Evidence, Court record, Relevancy and materiality. Judgment. Words, "Protracted period."
Complaint received and sworn to in the Plymouth Division of the District Court Department on February 11, 2021.
The case was tried before James M. Sullivan, J.
Christopher DeMayo for the defendant. Johanna Black, Assistant District Attorney, for the Commonwealth.
DITKOFF, J. The defendant, Robert A. Sabin, appeals from
his conviction, after a District Court jury trial, of parental
kidnapping, G. L. c. 265, § 26A. The defendant kept his five
year old child after his weekend of parenting time, intending to
take the child on vacation to an amusement park in New Jersey 2
for six days. Concluding that the jury could find that six days
was a protracted period of time under the circumstances here,
and that the admission of an uncertified Probate and Family
Court judgment, if error, did not prejudice the defendant, we
affirm.1
1. Background. The mother and the defendant shared legal
custody of their five year old son pursuant to a judgment from a
Probate and Family Court judge, following a trial in that court.
The judgment gave the mother sole physical custody of the child,
except that the defendant was allowed parenting time every other
weekend from Friday at 5 P.M. until Sundays at 6 P.M., as well
as two hours each Wednesday evening. The mother would
occasionally pick the child up at 8 P.M. on Sunday when the
defendant had not exercised his two-hour parenting time on the
preceding Wednesday.
The defendant wanted to take the child on a six-day
vacation to an amusement park in New Jersey. Thrice, the
defendant texted the mother about his planned vacation. On
November 26, 2019, he wrote, "July 26 2020 to aug 1st 2020 ill
be taking [the child] on vacation." On January 3, 2020, he
wrote, "Think i told you but i got the approval. 7/26-8/1 2020.
1 As we discuss infra, the parental kidnapping statute, G. L. c. 265, § 26A, punishes not only a person who unlawfully "holds" a child for a protracted period of time, but also one who "intends to hold" a child for a protracted period of time. 3
Taking [the child] on vacation." And on June 30, 2020, he
wrote, "Just 3rd heads up 7-26 to 8-1 taking [the child] on
vaca," to which the mother replied in part, "You don't have a
week vacation to take him in our court order and I'm not
agreeing to that. I don't know why you think you can just
decide something against our order and do what you . . . ."2
Around 2 P.M. on Sunday, July 26, 2020, the mother texted
the defendant about picking the child up that evening, and the
defendant told her that "he was not going to be giving [the
child] back to [her], that he planned on taking [the child] out
of state to go on vacation." She told the defendant that she
"was not in agreeance to that."
When she went to pick up the child that evening, neither
the child nor the defendant was there. She tried to call the
defendant multiple times, but he did not answer. She contacted
the police.
Initially, the police were unable to reach the defendant,
so an officer left a voice mail message. Later that night, the
defendant called the officer back. The officer explained that
he had called to "check the wellbeing of the child" because
there appeared to be "a probate order in effect" saying that the
child "was supposed to be in [the mother's] custody at that
2 The remainder of the mother's text message is not visible in the screenshot of the message that was admitted at trial. 4
point." The defendant told the officer that "he knew he was in
violation of the order, but that it was something he would deal
with -- the contempt of which he would deal with at another
time." At this point, the defendant was in Connecticut, about
three hours from New Jersey. The officer told the defendant
that the defendant "was likely committing a criminal offense,"
and "suggest[ed] that he return with the child." The defendant
told the officer that he would call back again.
The defendant called again and told the officer that he
would be returning with the child that evening. The defendant
returned with the child at approximately 1:05 A.M.
2. Sufficiency of the evidence. a. Standard of review.
Where, as here, a sufficiency of the evidence challenge is based
on statutory interpretation, we begin our review with
interpreting the statute at issue. "Our primary duty in
interpreting a statute is 'to effectuate the intent of the
Legislature in enacting it.'" Commonwealth v. Sousa, 88 Mass.
App. Ct. 47, 49 (2015), quoting Campatelli v. Chief Justice of
the Trial Court, 468 Mass. 455, 464 (2014). "The language of
the statute is the starting point for all questions of statutory
interpretation." Bank of N.Y. Mellon v. Morin, 96 Mass. App.
Ct. 503, 507 (2019), quoting Retirement Bd. of Stoneham v.
Contributory Retirement Appeal Bd., 476 Mass. 130, 135 (2016).
"If the language is 'clear and unambiguous, it is to be given 5
its "ordinary meaning."'" Commonwealth v. Mansur, 484 Mass.
172, 175 (2020), quoting Commonwealth v. Soto, 476 Mass. 436,
438 (2017). "We review questions of statutory interpretation de
novo." Wallace W. v. Commonwealth, 482 Mass. 789, 793 (2019),
quoting Millis Pub. Sch. v. M.P., 478 Mass. 767, 775 (2018).
After we discern the meaning of the underlying statute,
"[w]e consider the evidence introduced at trial in the light
most favorable to the Commonwealth, and determine whether a
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Commonwealth v.
Lagotic, 102 Mass. App. Ct. 405, 407 (2023), quoting
Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 216 (2019). "The
inferences that support a conviction 'need only be reasonable
and possible; [they] need not be necessary or inescapable.'"
Commonwealth v. Howe, 103 Mass. App. Ct. 354, 357 (2023),
quoting Commonwealth v. Wheeler, 102 Mass. App. Ct. 411, 413
(2023).
b. "Protracted period" of time. For ordinary kidnapping
under G. L. c. 265, § 26, no particular period of confinement is
necessary. Rather, "[a]ny restraint of a person's liberty is a
confinement or an imprisonment." Commonwealth v. Dykens, 438
Mass. 827, 841 (2003). For example, "the act of forcing the
victim into [an] alley, though admittedly brief, was nonetheless
sufficient" to support a kidnapping conviction. Commonwealth v. 6
Wilcox, 72 Mass. App. Ct. 344, 350 (2008). Accord Commonwealth
v. Lent, 46 Mass. App. Ct. 705, 706, 710 (1999) (defendant
controlled victim's movements for one block).
The parental kidnapping statute is different. That statute
applies to "a relative of a child less than eighteen years old,
[who,] without lawful authority, holds or intends to hold such a
child permanently or for a protracted period, or takes or
entices such a child from his lawful custodian." G. L. c. 265,
§ 26A.3 Thus, absent an intent to hold the child permanently or
for a protracted period of time, a brief restraint is
insufficient. The Commonwealth must prove either that the
defendant held the victim for a protracted period of time or
that the defendant intended to hold the victim for a protracted
period of time (or permanently).
Where, as here, the Commonwealth alleged that the defendant
intended to hold the victim for a protracted period of time, the
actual amount of time the victim was held is material only to
the extent that it illuminates the defendant's intent. In light
of the way the Commonwealth prosecuted this case, we do not
reach the question whether the length of time for which the
defendant actually held the child -- approximately seven hours,
3 In addition to protecting children, the statute also protects an incompetent victim or "other person entrusted by authority of law to the custody of another person or institution." G. L. c. 265, § 26A. 7
from 6 P.M. until 1:05 A.M. -- would constitute a "protracted
period" within the meaning of § 26A. If the confinement is
interrupted by police involvement before a protracted period of
time has passed, which we may assume it was here, it is the
defendant's intent that controls.
Given this posture, the defendant challenges only whether
the six days he admittedly intended to hold the child could
constitute a "protracted period" of time. We conclude that it
may.
Whether a period of time is a "'protracted period' is
highly context-dependent." State v. Cline, 180 Wash. App. 644,
653 (2014). Accord Commonwealth v. Oberle, 476 Mass. 539, 540,
547, 549 (2017) (in domestic violence kidnapping case, "rational
juror could have concluded that . . . confinement was
protracted" such that it went beyond "confinement or restraint
. . . inherent in the underlying assaults and batteries" where
"it was dark when the entire incident began" and "light by the
time the victim escaped"). Our colleagues in other States with
parental kidnapping statutes similar to ours have articulated a
"protracted period" as "a lengthy or unusually long time under
the circumstances," Cline, supra; State v. Luckie, 120 N.M. 274,
279 (Ct. App. 1995), quoting People v. Obertance, 105 Misc. 2d
558, 559 (N.Y. Crim. Ct. 1980); or a "drawn out or prolonged
period of time," State v. Romero, 145 N.M. 594, 600 (Ct. App. 8
2008). See Regina C. v. Michael C., 440 P.3d 199, 207 (Alaska
2019) (distinguishing in dicta "short period of time" from
"protracted period" of time). Whether a period of time is
protracted may depend on, among other considerations, the age of
the child, see Cline, supra at 646 (weekend may be protracted
period for "a 14–month–old child"), any conditions on parenting
time, see People v. Sharp, 104 A.D.3d 1325, 1326 (N.Y. 2013)
(indictment upheld where parent who was permitted "only limited
supervised visitation" held child overnight), or the
circumstances under which the parent takes the child, see People
v. Garcia, 46 Misc. 3d 620, 627 (N.Y. Crim. Ct. 2014) ("The bare
allegation that [the noncustodial parent] picked the child up
from school does not sufficiently allege the intent to hold her
either 'permanently or for a protracted period'"). See also
Schofield v. State, 132 Nev. 303, 308–309 (2016) (interpreting
"intent to keep" element of first-degree kidnapping to mean
"keep . . . permanently or for a protracted period of time" and
discerning that trip to grocery store was insufficient).
Here, the jury could find that the six days that the
defendant intended to keep the child was a protracted period of
time. The child was only five years old, and the defendant was
supposed to have parenting time for only the weekend. Under
these circumstances, a reasonable jury could find that an extra
six days of vacation out of State was a protracted period of 9
time. See Sharp, 104 A.D.3d at 1326 (overnight); People v.
S.W., 81 Misc. 3d 299, 300-301 (N.Y. County Ct. 2022) (little
over one day); Cline, 180 Wash. App. at 646 (weekend). See also
State v. Munoz, 139 N.M. 106, 112-113 (2006) (two weeks); State
v. Dirks, 35 Or. App. 33, 37 (1978) (two months).
3. Authentication of uncertified court judgment.
Evidentiary "matters are 'entrusted to the trial judge's broad
discretion and are not disturbed absent palpable error.'"
Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 (2018), quoting
Commonwealth v. Keown, 478 Mass. 232, 242 (2017), cert. denied,
583 U.S. 1139 (2018). "The 'judge's discretionary decision
constitutes an abuse of discretion where we conclude the judge
made "a clear error of judgment in weighing" the factors
relevant to the decision, such that the decision falls outside
the range of reasonable alternatives.'" Commonwealth v.
Pimentel, 99 Mass. App. Ct. 597, 600 (2021), quoting
Commonwealth v. Butler, 87 Mass. App. Ct. 183, 187 (2015).
Because the defendant objected to the admission of the
uncertified Probate and Family Court judgment, we review for
"prejudicial error." Commonwealth v. Cruz, 445 Mass. 589, 591
(2005). "An error is not prejudicial if it did not influence
the jury, or had but very slight effect." Commonwealth v.
White, 103 Mass. App. Ct. 655, 659 (2024), quoting Commonwealth
v. Souza, 492 Mass. 615, 627 (2023). 10
Here, we need not decide whether it was proper to admit the
Probate and Family Court judgment -- which was uncertified but
the mother testified was authentic -- because its admission did
not prejudice the defendant. The mother testified that the
operative Probate and Family Court judgment allowed the
defendant parenting time every other weekend from Friday at
5 P.M. until Sunday at 6 P.M. Far from contesting this, the
defendant confirmed it, telling the police officer that "he knew
he was in violation of the order." Accordingly, the judgment
itself was cumulative evidence of its uncontested existence and
relevant terms, and its admission was nonprejudicial. See
Commonwealth v. Caruso, 476 Mass. 275, 291 (2017) (no prejudice
where erroneously admitted screenshots were cumulative of other
properly admitted evidence).
Judgment affirmed.