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
24-P-913
COMMONWEALTH
vs.
THEODORE HANCOCK, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant,
Theodore Hancock, Jr., was convicted of malicious destruction of
property valued at $1,200 or less, G. L. c. 266, § 127; larceny
of property valued at $1,200 or less, G. L. c. 266, § 30; and
assault and battery on a family or household member, G. L.
c. 265, § 13M. The defendant appeals, arguing that the
Commonwealth did not prove that he maliciously intended to
damage property, and that a substantial risk of a miscarriage of
justice arose from two aspects of the jury instructions. As to
the larceny count, the defendant argues that the judge should
have instructed the jury to consider whether he had a mistaken
belief that the cell phone he took was his own. As to the count for the assault and battery on a family or household member, the
defendant contends that the judge omitted one of the statutory
factors for determining whether a substantive dating
relationship existed. We affirm.
Background. The defendant and the victim were in a
romantic relationship for about one year, during which the
defendant lived with the victim and her children. In early
March 2023, the defendant and victim broke up; the defendant
began moving out, but left behind boxes of his belongings and a
television. The victim took back the defendant's key to her
apartment.
One week after the breakup, on the evening of March 12,
2023, the victim's apartment buzzer rang. Because the victim
was not expecting anyone, but "had a feeling" that it might be
the defendant, she did not answer the buzzer and instructed her
children not to answer it. The buzzer rang several more times
over a period of a couple of minutes. The victim sent her
children to their bedrooms while she sat in her living room.
Thereafter, the victim received a text message from the
defendant asking if she was at home, to which she replied, "Yes,
I am home. Please leave me alone. My children are here." The
door to the apartment was locked, the deadbolt was on, and a
chair was wedged under the doorknob.
2 After gaining access to the building, the defendant kept
trying to open the victim's apartment's front door. The
defendant said he was there to get his television. The victim
replied she would bring the television to him the next day, but
that her children were home, so she did not want him there.
Suddenly, the defendant kicked in the apartment door, damaging
the door frame and knocking over the chair. The defendant
walked into the living room, picked up his television, and left
the apartment building.
The victim took the boxes of the defendant's belongings and
put them in the hallway outside her apartment. She found the
defendant's cell phone and put it inside one of the boxes. A
short time later, the defendant regained access to the building
and came back into the victim's apartment. He said he was
looking for his cell phone and looked around the living room for
it. The victim told him that all of his belongings were outside
the apartment and that he should take them and leave. After the
defendant refused to do so, the victim began video-recording him
on her cell phone. The victim yelled that she did not have the
defendant's cell phone, told him to get out of her apartment,
and accused him of breaking down her door. The defendant asked
the victim to call his cell phone, which she refused to do. He
took the victim's cell phone out of her hands and held it up out
3 of her reach. Then the defendant left the apartment with the
victim's cell phone.
The victim followed the defendant into the hallway and
downstairs to the ground floor, trying to grab her cell phone.
The defendant grabbed the victim's arms, "slammed" her to the
ground, and placed his hand around her neck. The defendant then
left with the victim's cell phone. Later that night, the police
arrested the defendant, retrieved the victim's cell phone, and
returned it to her.
On the counts on which he was later convicted, the
defendant moved for a required finding of not guilty, which the
judge denied.1 On a count alleging larceny from the person, the
jury convicted the defendant of the lesser-included offense of
larceny of property valued at $1,200 or less; the jury also
convicted the defendant of malicious destruction of property
valued at $1,200 or less, and assault and battery on a family or
household member. The defendant appeals.
Discussion. 1. Sufficiency of evidence of malicious
intent to damage property. The defendant argues that the
Commonwealth failed to prove that he had a malicious intent when
he damaged the victim's apartment's door frame, and so the judge
1 The judge allowed a required finding of not guilty as to a count alleging breaking and entering with intent to commit a felony. No issue is before us pertaining to that count.
4 erred by denying his motion for a required finding of not
guilty.
We review the sufficiency of the evidence to determine
"whether, after viewing the evidence in the light most favorable
to the [Commonwealth], any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass.
671, 677 (1979). For malicious destruction of property, "the
Commonwealth must prove that the act was done . . . in 'a state
of mind of cruelty, hostility or revenge'" (citation omitted).
Commonwealth v. Chambers, 90 Mass. App. Ct. 137, 143 (2016).
See Commonwealth v. Lounge, 87 Mass. App. Ct. 906, 908 (2015).
The defendant asserts that he "was motivated solely by his
desire to retrieve his television from [the victim]'s
apartment." In his view, his breaking down the door was simply
"a means to that end." Commonwealth v. Redmond, 53 Mass. App.
Ct. 1, 4 (2001) (evidence did not prove that damage to door
during burglary "was more than a means to that end"). See
Commonwealth v. Woods, 94 Mass. App. Ct. 761, 769 (2019) (where
defendant broke down neighbor's door while trying to hide from
police, "[t]here is no evidence that the defendant was motivated
by animus or hostility . . . his destruction of her door was
. . . an incidental consequence").
5 Viewed in the light most favorable to the Commonwealth, the
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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
24-P-913
COMMONWEALTH
vs.
THEODORE HANCOCK, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant,
Theodore Hancock, Jr., was convicted of malicious destruction of
property valued at $1,200 or less, G. L. c. 266, § 127; larceny
of property valued at $1,200 or less, G. L. c. 266, § 30; and
assault and battery on a family or household member, G. L.
c. 265, § 13M. The defendant appeals, arguing that the
Commonwealth did not prove that he maliciously intended to
damage property, and that a substantial risk of a miscarriage of
justice arose from two aspects of the jury instructions. As to
the larceny count, the defendant argues that the judge should
have instructed the jury to consider whether he had a mistaken
belief that the cell phone he took was his own. As to the count for the assault and battery on a family or household member, the
defendant contends that the judge omitted one of the statutory
factors for determining whether a substantive dating
relationship existed. We affirm.
Background. The defendant and the victim were in a
romantic relationship for about one year, during which the
defendant lived with the victim and her children. In early
March 2023, the defendant and victim broke up; the defendant
began moving out, but left behind boxes of his belongings and a
television. The victim took back the defendant's key to her
apartment.
One week after the breakup, on the evening of March 12,
2023, the victim's apartment buzzer rang. Because the victim
was not expecting anyone, but "had a feeling" that it might be
the defendant, she did not answer the buzzer and instructed her
children not to answer it. The buzzer rang several more times
over a period of a couple of minutes. The victim sent her
children to their bedrooms while she sat in her living room.
Thereafter, the victim received a text message from the
defendant asking if she was at home, to which she replied, "Yes,
I am home. Please leave me alone. My children are here." The
door to the apartment was locked, the deadbolt was on, and a
chair was wedged under the doorknob.
2 After gaining access to the building, the defendant kept
trying to open the victim's apartment's front door. The
defendant said he was there to get his television. The victim
replied she would bring the television to him the next day, but
that her children were home, so she did not want him there.
Suddenly, the defendant kicked in the apartment door, damaging
the door frame and knocking over the chair. The defendant
walked into the living room, picked up his television, and left
the apartment building.
The victim took the boxes of the defendant's belongings and
put them in the hallway outside her apartment. She found the
defendant's cell phone and put it inside one of the boxes. A
short time later, the defendant regained access to the building
and came back into the victim's apartment. He said he was
looking for his cell phone and looked around the living room for
it. The victim told him that all of his belongings were outside
the apartment and that he should take them and leave. After the
defendant refused to do so, the victim began video-recording him
on her cell phone. The victim yelled that she did not have the
defendant's cell phone, told him to get out of her apartment,
and accused him of breaking down her door. The defendant asked
the victim to call his cell phone, which she refused to do. He
took the victim's cell phone out of her hands and held it up out
3 of her reach. Then the defendant left the apartment with the
victim's cell phone.
The victim followed the defendant into the hallway and
downstairs to the ground floor, trying to grab her cell phone.
The defendant grabbed the victim's arms, "slammed" her to the
ground, and placed his hand around her neck. The defendant then
left with the victim's cell phone. Later that night, the police
arrested the defendant, retrieved the victim's cell phone, and
returned it to her.
On the counts on which he was later convicted, the
defendant moved for a required finding of not guilty, which the
judge denied.1 On a count alleging larceny from the person, the
jury convicted the defendant of the lesser-included offense of
larceny of property valued at $1,200 or less; the jury also
convicted the defendant of malicious destruction of property
valued at $1,200 or less, and assault and battery on a family or
household member. The defendant appeals.
Discussion. 1. Sufficiency of evidence of malicious
intent to damage property. The defendant argues that the
Commonwealth failed to prove that he had a malicious intent when
he damaged the victim's apartment's door frame, and so the judge
1 The judge allowed a required finding of not guilty as to a count alleging breaking and entering with intent to commit a felony. No issue is before us pertaining to that count.
4 erred by denying his motion for a required finding of not
guilty.
We review the sufficiency of the evidence to determine
"whether, after viewing the evidence in the light most favorable
to the [Commonwealth], any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass.
671, 677 (1979). For malicious destruction of property, "the
Commonwealth must prove that the act was done . . . in 'a state
of mind of cruelty, hostility or revenge'" (citation omitted).
Commonwealth v. Chambers, 90 Mass. App. Ct. 137, 143 (2016).
See Commonwealth v. Lounge, 87 Mass. App. Ct. 906, 908 (2015).
The defendant asserts that he "was motivated solely by his
desire to retrieve his television from [the victim]'s
apartment." In his view, his breaking down the door was simply
"a means to that end." Commonwealth v. Redmond, 53 Mass. App.
Ct. 1, 4 (2001) (evidence did not prove that damage to door
during burglary "was more than a means to that end"). See
Commonwealth v. Woods, 94 Mass. App. Ct. 761, 769 (2019) (where
defendant broke down neighbor's door while trying to hide from
police, "[t]here is no evidence that the defendant was motivated
by animus or hostility . . . his destruction of her door was
. . . an incidental consequence").
5 Viewed in the light most favorable to the Commonwealth, the
evidence was sufficient for a rational juror to conclude that
the defendant's breaking down the victim's apartment door was
more than an "incidental consequence" of retrieving his
television. Woods, 94 Mass. App. Ct. at 769. See Commonwealth
v. Gordon, 82 Mass. App. Ct. 227, 233 (2012) (evidence
sufficient that destruction of property "was not incidental to
some other venture or purpose" despite defendant's lack of
hostility toward owners and stated purpose of releasing rage).
The defendant kicked in the door knowing that the victim and her
children were inside. He did so after the victim denied him
access to her apartment, asked him to leave, and offered to
bring the television to him the next day. "The property injury
here . . . could be viewed by the jury as going well beyond the
incidental." Commonwealth v. Wynn, 42 Mass. App. Ct. 452, 456
(1997). The evidence supported an inference that the defendant
acted out of "cruelty, revenge, or hostility." Lounge, 87 Mass.
App. Ct. at 908.
2. Jury instructions. The defendant argues that the
judge's charge to the jury should have included an honest but
mistaken belief instruction, and improperly omitted one of the
factors the jury could consider in determining the existence of
a substantive dating relationship. Because the defendant did
not object on either ground at trial, we review each claim for
6 "a substantial risk of a miscarriage of justice." See
Commonwealth v. Marinho, 464 Mass. 115, 122 (2013).
a. Honest but mistaken belief. As to the larceny count,
the defendant contends that the trial evidence adequately
established that he took the victim's cell phone because he
thought it was his own, and so the judge was required to
instruct on a defense of honest and reasonable, but mistaken,
belief or claim. See Commonwealth v. Vives, 447 Mass. 537, 542
(2006). See also Commonwealth v. Liebenow, 470 Mass. 151, 161-
162 & n.15 (2014). He argues that his trial lawyer was
ineffective for not having requested such an instruction.
To raise a defense of honest but mistaken belief, the
defendant was required, before trial, to notify the Commonwealth
and the court of his intent to do so pursuant to Mass. R.
Crim. P. 14 (b) (3), as appearing in 442 Mass. 1518 (2004). See
Vives, 447 Mass. at 542 n.4; Commonwealth v. Ryan, 93 Mass. App.
Ct. 486, 492 (2018). The defendant failed to give that notice,
and so the defense was not available to him.
"In any event, even assuming the defendant adequately
raised the defense, the Commonwealth provided sufficient
evidence to disprove it." Ryan, 93 Mass. App. Ct. at 492. The
victim's and the defendant's cell phones were made by different
manufacturers, reducing the likelihood that one could be
mistaken for the other. The video recording that the victim
7 made with her cell phone contains no statement by the defendant
that he thought that the cell phone the victim was holding was
his own. Indeed, in the video recording the defendant can be
heard repeatedly demanding that the victim call his lost cell
phone; that showed that he believed that the cell phone she was
holding was her own and not his. "A rational jury could have
rejected the defendant's claim of honest belief based on this
evidence." Ryan, supra at 493.
For the first time on appeal, the defendant argues that
trial counsel was ineffective for failing to request an honest
but mistaken belief instruction. We may resolve an ineffective
assistance claim on direct appeal only if "the factual basis of
the claim appears indisputably on the trial record."
Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).
"[A]n ineffective assistance of counsel challenge made on the
trial record alone is the weakest form of such a challenge
because it is bereft of any explanation by trial counsel for his
actions and suggestive of strategy contrived by a defendant
viewing the case with hindsight" (citation and quotation
omitted). Commonwealth v. Zinser, 446 Mass. 807, 810-811
(2006). At trial, defense counsel argued that the defendant
lacked the intent to permanently deprive the victim of her cell
phone. For counsel to have simultaneously pursued an
inconsistent defense that the defendant believed the victim's
8 cell phone was his own would have undermined that strategy.
Based on the record before us, we cannot conclude that trial
counsel's conduct fell below the standard of Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974).
b. Factors for determining substantive dating
relationship. On the assault and battery count, the judge
instructed that the definition of family or household member
included persons who have been in a substantive dating
relationship. The defendant argues that a substantial risk of a
miscarriage of justice arose because the instruction on
determining proof of a substantive dating relationship omitted
one of the statutory factors, "whether the relationship was
terminated by either person," G. L. c. 265, § 13M, as amended
through St. 2014, c. 260, § 23.2
Paraphrasing the Criminal Model Jury Instructions for Use
in the District Court 6.275 (2019), the judge instructed the
2 That statute provides:
"the trier of fact shall determine whether a relationship is substantive by considering the following factors: the length of time of the relationship; the type of relationship; the frequency of interaction between the parties; whether the relationship was terminated by either person; and the length of time elapsed since the termination of the relationship" (emphasis added).
G. L. c. 265, § 13M, as amended through St. 2014, c. 260, § 23.
9 jury on the "family or household member" element of G. L.
c. 265, § 13M as follows:
"[T]wo persons are family or household members if . . . they are or have been in a substantive dating or engaging[3] relationship which requires consideration of the length of the time of the relationship, the type of relationship, the frequency of interaction between the defendant and [the victim], and the length of time that has elapsed since the termination of the relationship." (Emphases added.)
The defendant did not object.
During deliberations, the jury asked: "Does their
relationship still count as serious as defined by the law after
being broken up with?" Questioned by the judge about how he
should respond, defense counsel said, "Judge, I think you gave
the definition in your instructions. . . . And I guess I would
just suggest that they go back to that description." The judge
then re-read his prior instruction for both counsel, and defense
counsel said she was content with that instruction. For the
jury, the judge repeated his earlier instruction, again
including the phrase "are or have been in a substantive dating
. . . relationship," but omitting the phrase "whether the
relationship was terminated by either person." About thirty
minutes later, the jury returned with a guilty verdict.
3 The defendant does not argue that he was prejudiced by the judge's use of the word "engaging" instead of "engagement," G. L. c. 265, § 13M, and so we do not consider the issue.
10 We conclude that no substantial risk of a miscarriage of
justice arose from omission of the phrase "whether the
relationship was terminated by either person," G. L. c. 265,
§ 13M (c) (iii), from the instruction on the factors to be
considered by the jury in determining whether the relationship
was substantive. Section 13M directs that the trier of fact
"shall determine" whether a relationship is substantive "by
considering" factors including whether the relationship has been
terminated. Those factors "are not themselves elements of the
offense," and "[t]here does not need to be evidence as to each
factor." Commonwealth v. Dustin, 476 Mass. 1003, 1006 n.7
(2016).
In 2014, the Legislature amended § 13M by rephrasing the
substantive dating relationship factors to state, "whether the
relationship was terminated by either person; and the length of
time elapsed since the termination of the relationship,"
treating as two separate factors the termination of the
relationship and the length of time elapsed since.4 The
defendant argues that the 2014 amendment to § 13M shows that the
Legislature intended termination of the relationship to be "a
4 Prior to the 2014 amendment, § 13M stated, "if the relationship has been terminated by either person, the length of time that has elapsed since the termination of the relationship." St. 2008, c. 534, § 1. That was identical to the language of G. L. c. 209A, § 1 (e).
11 mandatory factor" for the jury's consideration. The argument is
unavailing, because the Supreme Judicial Court has ruled that
each factor is not mandatory. See Dustin, 476 Mass. at 1006
n.7. The defendant's reading of the statute would mean that
once a relationship was terminated, it could no longer meet the
definition of a substantive dating relationship. That
interpretation would contradict the part of the statute defining
family or household members as persons who "are or have been" in
a substantive relationship. We will not interpret the statute
so that one part contradicts another. See Commonwealth v.
Rainey, 491 Mass. 632, 642 (2023) ("[w]e will not adopt a
literal construction of a statute if the consequences of such a
construction are absurd or unreasonable" [citations and
quotations omitted]). Cf. Scione v. Commonwealth, 481 Mass.
225, 238 (2019) (where defendant and victim dated for four years
but broke up six years prior to incident involving explosive
device, defendant was family or household member as defined by
c. 209A); Commonwealth v. Gordon, 407 Mass. 340, 347 (1990)
(rejecting defendant's interpretation of prior version of G. L.
c. 209A, § 7, positing that "vacate" did not mean "remain
away").
Moreover, any ambiguity raised by omission of that language
from the jury charge was dispelled by the jury's question and
the judge's response to it. See Commonwealth v. King, 23 Mass.
12 App. Ct. 88, 91 (1986). The judge's instruction that family or
household members included persons who "are or have been in a
substantive dating . . . relationship" (emphasis added) made
clear that § 13M may apply to persons whose relationship has
ended. Evaluating the jury charge as a whole and interpreting
the words as would a reasonable juror, see Marinho, 464 Mass. at
122, we are satisfied that the instructions conveyed the legal
concept of a "substantive dating relationship." The instruction
did not direct the jury to consider any improper factor.
Contrast C.O. v. M.M., 442 Mass. 648, 655 (2004) (in finding
substantive dating relationship, G. L. c. 209A, § 1, judge
improperly considered age of plaintiff and fact that criminal
complaint had issued, which were not statutory factors).
Judgments affirmed.
By the Court (Desmond, Grant & Hodgens, JJ.5),
Clerk
Entered: May 16, 2025.
5 The panelists are listed in order of seniority.