Commonwealth v. Brown, 090319 MACA, 18-P-340

Docket Nº:18-P-340
Judge Panel:Vuono, Wolohojian & McDonough, JJ.
Case Date:September 03, 2019
Court:Appeals Court of Massachusetts




No. 18-P-340

Appeals Court of Massachusetts

September 3, 2019

Summary decisions issued by the Appeals Court pursuant to its 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 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) .


A jury convicted the defendant, Eric Brown, of violating an abuse prevention order issued under G. L. c. 209A, § 7 (209A order). The judge sentenced the defendant to two and one-half years in the house of correction, with one year to serve, and the balance suspended for three years of probation. The conditions of the defendant's probation included an order forbidding the defendant from contacting his former wife and their daughter, and an order to stay away from them. Another condition of the defendant's probation was global positioning system (GPS) monitoring, listing as exclusion zones the former wife's and daughter's residences and workplaces. The judge impounded the work and home addresses of his former wife and their children. Aside from the protected persons' work and home addresses, the judge did not include geographic exclusion zones in either the GPS monitoring or stay-away orders. Nevertheless, the probation officer who fit the defendant with his GPS monitor instructed the defendant that his GPS exclusion zone was defined by the boundaries of the town of Plymouth, and that he was to remain outside those boundaries, other than to pass through Plymouth via Route 3.

Thereafter, the probation department issued a probation violation notice when the defendant's GPS monitor alerted to the defendant's presence at the Plymouth Registry of Motor Vehicles (RMV). At the defendant's probation detention and probable cause hearing, a second judge "found probable cause to believe that the defendant had violated the stay-away condition of his probation, and detained him pending a final violation hearing." At that hearing, the second judge "explicitly confirmed [the probation officer's explanation that] the parameters of the stay-away order . . . requir[ed] the defendant to remain out of the town of Plymouth." A third judge, who presided at the final probation violation hearing, found that the defendant's appearance at the Plymouth RMV did not violate the terms of his probation. The defendant then filed a motion for reconsideration, seeking to vacate the second judge's order "imposing the expanded exclusion zone of the [t]own of Plymouth and re-impose the original conditions of victim's residence and place of employment." After a nonevidentiary hearing, the second judge (who had heard the defendant's probation detention hearing) denied the defendant's motion.[1]

On appeal, the defendant (1) challenges the sufficiency of the evidence to sustain his conviction for violating the 209A order, (2) submits that the prosecutor's closing argument was improper, and (3) claims that his motion for reconsideration should have been allowed because the second judge unlawfully modified the conditions of his probation by imposing a GPS geographic exclusion zone not imposed by the sentencing judge. We affirm the defendant's conviction, but vacate the order denying the motion for reconsideration.

1. Sufficiency of the evidence.

The defendant submits that there was insufficient evidence supporting his conviction for violating a 209A order. We disagree. On a claim of insufficiency of the evidence, we 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." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). To convict a defendant of violating a 209A order, the Commonwealth must prove beyond a reasonable doubt: "(1) that a court had issued an abuse protection order; (2) that the order was in effect on the date when its violation allegedly occurred; (3) that the defendant knew the relevant terms of the order were in effect, either by having received a copy of the order or by having learned of the terms of the order in some other way; and (4) that the defendant violated a term of the order."

Commonwealth v. Shea, 467 Mass. 788, 794 (2014). If the defendant has allegedly violated a no-contact provision...

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