Com. v. Gordon

• Decision Date: 14 May 1990
• Citation: 407 Mass. 340,553 N.E.2d 915
• Parties: COMMONWEALTH v. Jonathan P. GORDON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 915

553 N.E.2d 915

407 Mass. 340

COMMONWEALTH v. Jonathan P. GORDON.

Supreme Judicial Court of Massachusetts Essex.

Argued Jan. 9, 1990.

Decided May 14, 1990.

Julian Soshnick (Bruce Garr, Boston, with him), for defendant.

Margaret J. Perry, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Chief Justice.

On January 4, 1989, tried before a jury of six in the Haverhill Division of the District Court Department, the defendant, Jonathan P. Gordon, was found guilty of violating a protective order issued pursuant to G.L. c. 209A (1988 ed.). He was sentenced by the judge to one year in a house of correction. ¹ The defendant now appeals from his conviction, asserting various errors in the trial below. We affirm the conviction.

The evidence submitted at trial warranted the jury finding the following facts. The defendant and Karen Gordon (Karen) had been married for eleven years when, on May 31, 1988, the couple separated in anticipation of divorce. On July 26, 1988, following a hearing at which the defendant was present, a judge of the District Court issued an order pursuant to G.L. c. 209A (209A order) requiring the defendant "to refrain from abusing [Karen]" and to "immediately leave and remain away from the [marital] household." The order also awarded temporary custody of the couple's two children to Karen and directed the defendant to pay $700 each month for the temporary support of the children. This order was to remain in effect from July 26, 1988, to July 26, 1989.

Between July 26, 1988, and November 10, 1988, the defendant came to the marital home on five separate occasions. Generally, these visits were to see his children. On November 10, 1988, the defendant telephoned Karen and asked if she would type a paper for a friend. She agreed, and the defendant came to the house to deliver the paper. During this visit, the defendant and Karen became involved in an argument when the defendant learned that Karen had been dating another man. The defendant yelled at his wife in front of their five year old son, calling her a "bitch" and a "whore." Karen testified at trial that, at this time, she was "upset" and felt "insecure"; she stated that she "didn't know what [the defendant] was going to do next."

Five days later, on November 15, 1988, the defendant returned to the house unannounced. Karen's brother and a neighbor were visiting at that time, and Karen sent her neighbor upstairs with the Gordons' older son to telephone the police. The defendant came to the outside of the front door of the house and urged Karen to let him in. He stated that he wanted to talk, but Karen did not respond or open the door. The defendant said that Karen was being "immature and ridiculous." The defendant left a note on the front door, returned to his automobile, and started to back out of the driveway. When Karen opened the door to take the note, the defendant left his automobile, walked up to the house, and stood with a foot on the threshold, his back resting against the front door, holding it open.

At this point, two officers of the Newbury police department arrived at the house. Lieutenant Rick Frappier ordered the defendant away from the door and arrested him for violation of the 209A order. The other police officer went into the house to speak with Karen, who stated that the defendant had not abused her physically during his visit. Lieutenant Frappier later filed a report incident to the defendant's arrest, which stated that "[the defendant] did not appear to be abusive nor did he make physical contact with [Karen]." ²

On appeal, the defendant contends that the trial judge erred in denying a motion for directed verdict and a motion for mistrial. The defendant also claims that the judge impermissibly admitted irrelevant and prejudicial evidence, and failed to instruct the jury properly regarding what acts would constitute a violation of the 209A order. Finally, the defendant argues that G.L. c. 209A, § 7, which makes criminal the violation of certain sections of a 209A order, fails to give clear warning as to what activities are proscribed. We address each claim in turn.

1. Denial of the defendant's motion for a required finding of not guilty. At the close of the Commonwealth's case, defense counsel moved for a required finding of not guilty. In support of the motion, defense counsel argued that G.L. c. 209A, § 7, makes criminal only the violation of a 209A order to "refrain from abus[e]" or to "vacate the household," and claimed that the Commonwealth had failed to present sufficient evidence to prove beyond a reasonable doubt that the defendant had either "abused" his wife on November 15, 1988, or that he had failed to "vacate" the marital home by November 15, 1988. The judge denied the defendant's motion.

In reviewing the denial of a motion for a required finding of not guilty, we must determine " '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' (emphasis in original)." Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989); Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). In this regard, we note that "[c]ircumstantial evidence is competent to establish guilt beyond a reasonable doubt ... [and] [a]n inference drawn from circumstantial evidence 'need only be reasonable and possible; it need not be necessary or inescapable.' " Commonwealth v. Merola, supra, quoting Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977).

The defendant's argument in support of his motion for a required finding of not guilty encompasses not only a dispute as to the testimony presented below and the inferences which reasonably can be drawn therefrom, but it also raises questions regarding the necessary elements of a criminal violation of G.L. c. 209A. Specifically, the defendant claims that he cannot be found to have "abused" his wife in violation of G.L. c. 209A, § 7, unless he physically harmed her or made some outwardly threatening gesture which put her in fear of "imminent serious physical harm." In addition, the defendant claims that a 209A order to "vacate the household" only requires him to surrender his residency at the marital home and does not prohibit him from returning to the home for visits. This court has not faced these issues before. A short review of the structure of G.L. c. 209A, as it relates to the present case, is in order.

General Laws c. 209A, entitled "Abuse Prevention," provides a statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse. "Abuse" is defined as "the occurrence of one or more of the following acts between family or household members: (a ) attempting to cause or causing physical harm; (b ) placing another in fear of imminent serious physical harm; (c ) causing another to engage involuntarily in sexual relations by force, threat of force or duress." G.L. c. 209A, § 1.

Under § 3 of c. 209 A, "[a] person suffering from abuse from an adult or minor family or household member may file a complaint in the court requesting protection from such abuse...." The complainant may request the court to issue orders which: (1) "[order] the defendant to refrain from abusing the plaintiff," (2) "[order] the defendant to vacate forthwith the household," (3) "[award] the plaintiff ... temporary custody of a minor child," (4) "[order] the defendant to pay temporary support for the plaintiff or any child in the plaintiff's custody or both," (5) "[order] the defendant to pay to the person abused monetary compensation for losses suffered as a direct result of ... abuse," and (6) "[order] the plaintiff's address to be impounded." G.L. c. 209A, § 3(a )-(f ). Any orders issued by the court are for a fixed period of time not to exceed one year. On the expiration of an order, the plaintiff may move for an extension, which the court may grant if it is needed to protect the plaintiff from abuse. Id.

While the court is entitled to issue any of the orders which the complainant may request under § 3, c. 209A appears to anticipate that only a violation of an order to refrain from abuse, or an order to vacate the household, will represent a criminal offense. Section 7 of c. 209 A requires any order to refrain from abuse or to vacate the household to contain the statement: "VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE," and provides that a violation of either of these types of orders "shall be punishable by a fine of not more than five thousand dollars or by imprisonment for not more than two and one-half years in a house of correction or both such fine and imprisonment." In contrast, no specific criminal sanctions are provided for violations of 209A orders other than orders to refrain from abuse or orders to vacate the household. Furthermore, no statements warning of criminal liability for violations are required for any 209A orders other than those described in § 7.

a. Order to vacate the household. The defendant argues that, while the judge below issued a 209A order requiring him to "immediately leave and remain away from the [marital household]," criminal liability may attach for a violation of the order only in so far as there is a failure to "vacate the household," as is provided in § 7. The defendant argues further that the order to "vacate" was satisfied when he surrendered legal occupancy in the house, and that § 7 did not require him to "remain away" from the house. Therefore, he concludes, he cannot be found criminally liable for returning to the marital home for visits, regardless of the terms of the 209A order below. We disagree. The defendant has misconstrued the scope...