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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. O’Shea, 41 Mass.App.Ct.
115 (1996)
Appeals Court of Massachusetts, Worcester.
No. 95‑P‑2177.
Argued
Decided
Richard J. Fallon,
John M. Goggins, Assistant
District Attorney, for Commonwealth.
Before KASS, SMITH and LENK, JJ.
SMITH,
Justice.
The
defendant was the subject of a complaint charging him with a violation of a
protective order issued under the provisions of G.L.
c. 209A. The Commonwealth claimed that
the defendant violated the order by failing to stay away from the complainant's
workplace. He was found guilty after a
one‑day jury‑waived trial and sentenced to eighteen months in a
house of correction. During the trial,
the judge denied the defendant's motion for a required finding of not guilty at
the close of the Commonwealth's evidence.
The motion was renewed at the close of all of the evidence and again
denied. On appeal, the defendant raises
one issue‑‑whether the judge committed error in denying his motions
for a required finding of not guilty.
[1] [41 Mass.App.Ct. 116] "In reviewing the denial of a motion
for a required finding of not guilty, we determine whether, on the basis of the
evidence viewed 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. Robicheau,
421
On May 29,
1995, following an ex parte hearing on application of
Mary Jacobs (a pseudonym), a District Court judge issued a temporary
restraining order pursuant to G.L. c. 209A directed
against the defendant. The order
provided that the defendant was "not to abuse" Jacobs; that he "stay at least 100 yards away
from [her and her three children]";
that he "stay away from [her] residence ... at [named address] North
Brookfield" and "stay away from [her] workplace [the town hall] ...
located at 185 Main Street, N. Brookfield." (FN1)
Jacobs
testified to the events leading up to the obtaining of the restraining
order. She had had a relationship with
the defendant which ended in April or May 1995.
On May 28, 1995, after their relationship had ended, Jacobs spoke at an
AA meeting about her fear of the defendant, but did not mention his name. There was evidence that on the following day,
at another AA meeting, the defendant "said that he had been humiliated the
night before, ... that ... someone had broken his confidence[,] ... that he
didn't feel like drinking or using drugs but that he wanted revenge. He wanted physical revenge." Jacobs learned of the defendant's comments and
that day obtained the protective order.
On May 30,
1995, at 9:15 A.M., Jacobs went to work at the town hall in North
Brookfield. At 9:30 A.M., she spoke with
Sergeant Thomasian of the North Brookfield
police. She told him that she would be
away the following three days, that the defendant was aware of her plans, and
that she was nervous that he would try to break into her house. She gave Thomasian
a description of the defendant's car.
Jacobs worked in [41 Mass.App.Ct. 117] her
office until about 11:15 A.M., when she left the town hall on other town
business. She returned to her office at
1:00 P.M. and left at 2:30 P.M.
At 11:30
A.M., Thomasian saw the defendant's car parked in
front of The News Room, a local coffee shop.
The News Room is located on the same side of Main Street as the town
hall, but the two locations are separated by a side street. From where the defendant parked his car in
front of The News Room, he could observe the town hall parking lot where Jacobs
usually parked her car. Her car was not
there.
Thomasian watched the defendant go to his automobile, put a
flannel shirt on, and then go into The News Room. After about fifteen minutes, the defendant
came out of The News Room, got into his car, and drove away. At that point, about 12:30 P.M., Thomasian stopped the defendant's car and asked him if he
knew that there was a restraining order against him. The defendant said, "Yes, I have it
right here in my wallet," and produced a piece of paper. Thomasian then
asked the defendant, "Well, ... don't you realize on that restraining
order that you're supposed to stay away from where this person
works?" The defendant said,
"Yes." The defendant told the
officer that he was just going to the bank and that he noticed that Jacobs's
car was not parked outside of the town hall.
The defendant was then arrested for violating the protective order.
The
defendant testified that on May 30, 1995, he drove from Holland, where he
lives, to North Brookfield, about a thirty to forty‑five minute drive, to
make a deposit in a bank to cover some checks that he had previously cashed. He parked in front of The News Room, walked
to a bank located on a side street, and proceeded to drive away, when he was
arrested. He admitted that he knew that
Jacobs worked at the town hall but testified that he did not see her that day.
[2] On appeal,
the defendant argues that the trial judge erred in not granting his motions for
a required finding because he did not violate any part of the protective order‑‑he
was never within 100 yards of Jacobs, and he never entered her workplace, the
town hall. The Commonwealth claims,
however, that the order clearly stated that the defendant was to "stay
away" from Jacobs's workplace, and the defendant violated that order
because he knew that Jacobs worked at the town hall, he intentionally parked
his car near the town [41 Mass.App.Ct. 118] hall and
was, according to the Commonwealth, in the "vicinity" of Jacobs's
workplace when he walked on the sidewalk across the street from the town hall.
[3] On a
complaint charging a defendant with a violation of a G.L.
c. 209A order, the Commonwealth must prove that "there was a clear, outstanding order of the
court, that the defendant knew of that order, and that the defendant clearly
and intentionally disobeyed that order in circumstances in which he was able to
obey it" (emphasis added). Commonwealth v. Brogan, 415 Mass. 169,
171, 612 N.E.2d 656 (1993), quoting from Furtado v. Furtado, 380 Mass.
137, 145, 402 N.E.2d 1024 (1980). The
word "vicinity," according to Black's Law Dictionary (6th ed. 1990),
means, "Quality or state of being near, or not remote; nearness;
propinquity; proximity; a region about, near or adjacent...." The word is so imprecise that if we hold that
the "stay away" order means stay away from the "vicinity"
of the workplace, the order would fail to meet the requirement that it must be
clear.
By
ordering the defendant to stay away from the workplace, the order created a
safe haven for Jacobs at her workplace, a place "in which no further abuse
need be feared...." Commonwealth v. Gordon, 407 Mass. 340,
347, 553 N.E.2d 915 (1990). We agree
with the Commonwealth that the "stay away" order is not limited to
preventing the defendant from merely entering the town hall itself (Jacobs's
workplace). Rather, such an order, even
as specific as this one is, extends to all of the property on which the
workplace is located including the adjacent parking lot.
Here, the
defendant was ordered to stay at least 100 yards away from Jacobs. The order created a zone of privacy of 100
yards around Jacobs wherever she was present.
If Jacobs was at her workplace, the defendant could not come within 100
yards of that workplace inclusive of its area as defined in this opinion. Because of her work schedule on May 30, 1995,
there was no evidence that the defendant came within 100 yards of Jacobs's
workplace while she was there or that the defendant entered the area of the
workplace while she was not there. The
defendant, therefore, did not violate the order [41 Mass.App.Ct.
119] and his motion for a required finding of not guilty should have been
allowed.
Judgment reversed.
Finding of guilt set aside.
Judgment for the defendant.
(FN1.) Under G.L. c.
209A, § 3(c), as appearing in
St.1990, c. 403, § 3, a "vacate ... and remain away" order may
include the complainant's workplace. See
also G.L. c. 209A, § 1, as appearing in St.1990, c.
403, § 2, which also states that "[a] vacate order may include in its
scope ... the [complainant's] workplace."