Commonwealth v. Lockwood

• Decision Date: 22 April 2019
• Docket Number: No. 17-P-1105,17-P-1105
• Citation: 122 N.E.3d 1078,95 Mass.App.Ct. 189
• Parties: COMMONWEALTH v. Jon T. LOCKWOOD.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 189

122 N.E.3d 1078

COMMONWEALTH

v.Jon T. LOCKWOOD.

No. 17-P-1105

Appeals Court of Massachusetts, Norfolk..

Argued November 2, 2018

Decided April 22, 2019

Elaine Fronhofer, for the defendant.

Stephanie Martin Glennon, Assistant District Attorney (Lisa B. Beatty, Assistant District Attorney, also present) for the Commonwealth.

Present: Wolohojian, Hanlon, & Ditkoff, JJ.

WOLOHOJIAN, J.

The defendant forcibly removed his two young children from the foster home where they had been placed by the Department of Children and Families (DCF). After a jury trial in which he represented himself, the defendant was convicted of breaking and entering with intent to commit a felony, G. L. c. 266, § 18 ; two counts of aggravated parental kidnapping, G. L. c. 265, § 26A ; assault and battery upon a person over sixty, G. L. c. 265, § 13K ; and battery on a child, G. L. c. 265, § 13A.¹ Raising numerous issues in this appeal, some pursuant to Commonwealth v. Moffett, 383 Mass. 201, 418 N.E.2d 585 (1981), the defendant challenges his convictions and the denial in part of his posttrial motion seeking portions of the audio recording of the trial.² We affirm.

Background. We summarize the undisputed facts, reserving additional factual detail where necessary for our later discussion of the defendant's claims. While living in Vietnam, the defendant, a United States citizen, had two children with a Vietnamese woman: a girl, S.L., and a boy, P.L. The children's mother spent periods away and eventually moved to Switzerland. The defendant returned to the United States with the children and initially lived with members of his family in Utah. After he found work in Massachusetts, however, he moved here with the children in August 2011; they lived in a motel near his workplace. When the motel manager reported that the children (then ages nine and seven) were being left alone during the day, they were removed from the defendant's custody and placed in a foster home. Permanent custody was awarded to DCF on March 1, 2013. Subsequently, DCF moved to transfer custody to the mother in Switzerland; the motion was scheduled to be heard on May 29, 2013.

Nine days before that scheduled hearing, the defendant had a supervised visit with the children after which a DCF employee drove the children back to the foster home.³ Despite the fact that the defendant was not permitted to meet with the children outside his permitted supervised visits or to know where they lived, the defendant followed them in his car, which he had packed with many items associated with a long trip.^{4 ,5} He then waited outside the foster home as the DCF employee delivered the children to the home. The boy came back outside to play and spotted the defendant; he ran back inside the house to alert the foster mother to the defendant's presence. The defendant gave chase and followed the boy onto the porch of the house, where the foster mother tried to block the defendant's further progress. The defendant pushed the sixty-three year old foster mother aside in order to enter the kitchen. He then grabbed the boy and pulled him through the house, out the front door, and across the lawn. After putting the boy in the car, the defendant also pushed the girl into the car. He then drove the children away. He was apprehended late that night in Connecticut as a result of an Amber alert.

Discussion. 1. Breaking and entering charge. The defendant challenges his conviction of breaking and entering with the intent to commit the felony of aggravated parental kidnapping on four grounds. First, he contends that the judge erred in instructing the jury that a person's body could be an obstruction that, if removed, can constitute a "breaking." Second, he contends that the instructions did not clearly inform the jury that the defendant's felonious intent must have been formed by the time he broke and entered the home. Third, he argues that the jury should have been instructed on the lesser included offense of breaking and entering with the intent to commit the misdemeanor form of parental kidnapping, G. L. c. 265, § 26A. Fourth, he contends that the conviction must be reversed because the evidence indisputably showed that the occupant of the home had been put in fear, whereas the statute required that the Commonwealth prove no one was placed in fear. We address each argument in turn.

a. Obstruction instruction. As we have noted above, it was undisputed that the defendant pushed the foster mother aside before entering the kitchen of the foster home. But there was a dispute whether, before reaching the foster mother, the defendant had entered the porch of the house through an open or closed door. The foster mother testified that the defendant entered the home by pushing open a storm door. She then stiffly blocked him with her hand and said, "[Y]ou know you're not supposed to do this." By contrast, the defendant testified that he entered the house through a door that had been left open by P.L. as the boy ran into the house.

Without objection, the judge instructed the jury:

"Breaking has been defined as exerting physical force, even slight physical force, and thereby forcibly removing an obstruction and gaining entry.

"Another definition would be the moving in a significant manner of anything that bars the way into the building. Some examples would include breaking a window, forcing open a door or window. But there are some less obvious examples that also are considered to be break ins. Opening a closed door or opening a closed window is a break in, even if they are unlocked. Going in through an open window that is not intended for use as an entrance is also a break in. But going in through an unobstructed entrance, such as an open door, is not."

Apparently focusing on the latter part of this definition, the deliberating jury posed the following questions to the judge: "Does a person constitute an obstruction, specifically in breaking?" and "[D]oes a verbal warning constitute an obstruction in breaking?" The judge responded to the jury that "Yes, a person's body may constitute an ‘obstruction.’ [And,] [n]o, a verbal warning may not. I am happy to answer any further questions, and/or repeat my instruction on the element of ‘breaking.’ " The defendant objected and now argues that it was error to instruct that a person's body may constitute an "obstruction" sufficient to constitute a "breaking."

Even assuming the instruction was erroneous as phrased (a matter we do not decide), reversal would not result because the two conflicting versions of the facts both constituted "breaking" into the house regardless of the foster mother's action. See Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445, 446 N.E.2d 117 (1983), quoting Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) (error is nonprejudicial if we are "sure that the error did not influence the jury, or had but very slight effect"). If, on the one hand, the jury credited the foster mother's testimony that the defendant pushed the door open to enter the house, that act clearly constitutes "breaking." See Commonwealth v. Bolden, 470 Mass. 274, 280 n.3, 21 N.E.3d 150 (2014) ("the defendant committed the required break by opening the rear door to the dwelling and thereupon entering it"). If, on the other hand, the jury credited the defendant's testimony that the boy opened the door in order to seek safety from the defendant who was chasing him, that too constituted a breaking, albeit a constructive one. See Commonwealth v. Lowrey, 158 Mass. 18, 19, 32 N.E. 940 (1893) ("It was not necessary that [the defendant] should have touched the door if he procured himself to be let in by an accomplice and entered with felonious intent. He might have been convicted, even if the hand which he made use of was innocent, as in case of a servant or constable"); Commonwealth v. Labare, 11 Mass. App. Ct. 370, 374-375, 377-378, 416 N.E.2d 534 (1981) (entry obtained by trickery is constructive break). Compelling another to open a closed door so as to gain entry, whether by agreement, trickery, force or -- as here -- fear, is sufficient to constitute a breaking even though it is accomplished by indirect means. Thus, because under either version of events, the breaking was accomplished before the defendant reached the foster mother, it matters not whether her body constituted an additional impediment to entry.

b. Felonious intent instruction. For the first time on appeal, the defendant argues that the instructions did not clearly inform the jury that the Commonwealth was required to prove that he held a felonious intent at the moment he entered the foster home. See Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464, 997 N.E.2d 1200 (2013) (unpreserved objection to instruction is reviewed to determine whether error occurred and, if so, whether it "created a substantial risk of a miscarriage of justice"). "Our review of claimed jury instruction errors requires us to ‘evaluate the instructions as a whole, looking for the interpretation a reasonable juror would place on the judge's words.’ Commonwealth v. Trapp, 423 Mass. 356, 361 , cert. denied, 519 U.S. 1045 [117 S.Ct. 618, 136 L.Ed.2d 542] (1996). ‘We do not consider bits and pieces of the instructions in isolation.’ Commonwealth v. Young, 461 Mass. 198, 207 (2012)." Id. at 465, 997 N.E.2d 1200.

Here, although it is true that at certain points the instructions did not explicitly tether the defendant's intent to the moment of breaking and entering, at numerous others the judge repeatedly made clear that the breaking and entering had to be accomplished "with the intent to commit a felony." Common understanding of the meaning of the preposition "with" was sufficient to inform the jury that the defendant's intent had to temporally accompany his act of breaking and entering. Moreover, the judge's instruction on specific intent made this point even more explicitly:

"The Commonwealth must prove specific intent on

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