Commonwealth v. Harold W. Parker.

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

23-P-1194

COMMONWEALTH

vs.

HAROLD W. PARKER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of

Violation of an Abuse Prevention Order, G. L. c. 209A, § 7, for

sending the victim a sexually explicit video on Facebook. On

appeal, the defendant argues that the judge erred by denying his

motions for required findings of not guilty. He argues that the

evidence presented by the Commonwealth was insufficient to

establish a violation of the 209A order on a particular date,

and insufficient to show that the defendant knew the terms of

the order. He also contends that the judge erred in denying his

request for a bench warrant for a police officer, whom the

defendant had summoned yet failed to appear at trial. We

affirm.
Background. The victim and the defendant dated for one

year. On February 25, 2021, the victim obtained an emergency

209A order against the defendant. Although two police officers

unsuccessfully attempted to serve the defendant with the order,

a third officer signed the return of service form on February

26th, and a box was checked indicating that personal service had

been made. At a hearing on March 1, 2021, the victim and the

defendant appeared, and the judge extended the 209A order for

one year. The judge later extended the order again through

March 1, 2023. The order required that the defendant "[not]

contact the plaintiff, in person, by telephone, in writing,

electronically or otherwise."

In October 2021, the defendant sent the victim a Facebook

message that included a video of a man masturbating. The

victim's mother called the police. The victim showed the

investigating officer what the latter described as "a Harold

Parker message, a video of [the defendant's] privates," although

the officer could not remember if he ever watched the video.

The investigating officer did not seize the video, nor did he

seize any accompanying Facebook messages. Rather, the victim

sent the video to the police via email.

At trial, the victim identified the man in the video as the

defendant based on the man's voice and the cabinets in the

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background. Defense counsel objected to authentication of the

video, arguing that the video did not depict the defendant. The

judge ruled that the witness identified the video and identified

the defendant's voice, which was sufficient to admit the video.

The victim testified on cross-examination about a

subsequent incident that occurred in August 2022, when the

police were called to the victim's house to investigate whether

the defendant violated the 209A order again by arriving outside

her house. A probation officer reviewed the defendant's GPS

monitoring data and determined he did not enter the exclusion

zone. The victim testified at trial that she did not speak with

the police officer who arrived at her home. No evidence

established who called the police in August 2022. The defendant

summonsed the responding officer as a witness to impeach the

victim by showing that she made a false report of a 209A

violation. The officer did not appear at trial and the

defendant requested a bench warrant. The judge denied the

request on the ground that the defendant's offer of proof failed

to establish that the officer would give relevant testimony.

Discussion. 1. Required findings of not guilty. The

defendant moved for required findings of not guilty after the

prosecutor's opening statement and at the close of the

Commonwealth's case-in-chief. See Mass. R. Crim. P. 25 (b) (1)

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- (2). In reviewing for evidentiary sufficiency, we ask

"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). Inferences

drawn from evidence, including circumstantial evidence, "need

only be reasonable and possible; [they] need not be necessary or

inescapable." Commonwealth v. Woods, 466 Mass. 707, 713 (2014),

quoting Commonwealth v. Merola, 405 Mass. 529, 533 (1989).

a. Opening Statement. The Commonwealth gave a brief

opening statement. The prosecutor told the jury that they would

hear from the victim and the investigating officer. The victim

would testify that she had a restraining order against the

defendant and that he violated it. The investigating officer

would testify that he responded to the victim's house and

investigated the restraining order violation. The prosecutor

explained that the jury would see the explicit video sent by the

defendant. After the Commonwealth's opening statement, the

defendant moved for a required finding of not guilty because the

prosecutor did not allege all the elements of a 209A violation.

Specifically, he argues that because the prosecutor used the

term "restraining order" rather than "abuse prevention order,"

the Commonwealth could not prove the charge. The defendant also

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alleged that the prosecutor did not explain the terms of the

209A order and did not allege that the defendant knew about the

order.

"The proper function of an opening is to outline in a

general way the nature of the case which the counsel expects to

be able to prove or support by evidence." Commonwealth v.

Kapaia, 490 Mass. 787, 794 (2022), quoting Commonwealth v.

Fazio, 375 Mass. 451, 454 (1978). Although judges may enter a

finding of not guilty after the Commonwealth's opening

statement, such a motion "should be denied unless it clearly

appears from the opening statement that the defendant cannot be

lawfully convicted and then only after the prosecutor has been

made aware of the difficulty and fails or is otherwise unable to

correct it." Commonwealth v. Lowder, 432 Mass. 92, 100-101

(2000), quoting People v. Kurtz, 51 N.Y.2d 380, 385 (1980),

cert. denied, 451 U.S. 911 (1981). The Supreme Judicial Court

explained that a trial judge should enter a finding of not

guilty after the prosecutor's opening statement only under two

instances. Lowder, 432 Mass. at 101. First, when the

prosecutor "clearly and deliberately" states a fact that would

require an acquittal. Id. Second, when the prosecutor outlines

"all operative facts" to be proven at trial, and those facts are

legally insufficient to convict. Id.

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The prosecutor's opening statement did not fall under

either scenario. The prosecutor did not admit any fact that

precluded a conviction. The use of the term "restraining order"

rather than "abuse prevention order" did not preclude a

conviction. Not only did the judge use the term "restraining

order" in jury instructions, but the Supreme Judicial Court has

routinely used the term to refer to abuse prevention orders

issued under Chapter 209A. See, e.g., Commonwealth v. Walters,

472 Mass. 680, 681 (2015). Second, the opening statement did

not embrace "all operative facts" to be proven at trial. During

the Commonwealth's case-in-chief, the Commonwealth ultimately

introduced evidence that the defendant was served with the 209A

abuse prevention order, which in the light most favorable to the

Commonwealth, established the knowledge element. See

Commonwealth v. Delaney, 425 Mass. 587, 592 (1997), cert.

denied, 522 U.S. 1058 (1998) ("Clearly, a showing that a

defendant was served with a copy of a court order is strong

evidence that a defendant had knowledge that certain conduct

would not be permitted and could result in a criminal

conviction"). The judge did not abuse his discretion in denying

the defendant's motion.

b. Case-in-chief. The defendant moved for a required

finding of not guilty after the Commonwealth rested. The judge

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denied his motion. On appeal, the defendant makes two

arguments. First, he argues that the Commonwealth's evidence was

insufficient to show that the violation occurred while the 209A

order was in effect. Second, he argues that the Commonwealth's

evidence was insufficient to establish that the defendant knew

about the terms of the 209A order. We reject both arguments.

i. Date of the violation of the 209A order. The victim

testified that she could not remember exactly when her mother

called the police to report the Facebook messages and video, but

that she "believe[d] it was around fall." Later, the prosecutor

asked the victim whether "the date that the police were called,

is that the same day that you received the video," to which she

answered, "Yes."1 The investigating officer testified that he

responded to the victim's home on October 6, 2021. It is

undisputed that the 209A issued on March 1, 2021, and was

renewed on March 1, 2022.

In the light most favorable to the Commonwealth, this

evidence was sufficient to establish that the Facebook messages

were sent when the 209A order was in effect in October 2021. A

rational jury could have inferred that because the victim

testified that she received the Facebook messages on the day the

1 The judge gave the prosecutor permission to ask leading
questions on direct examination of the victim, who has autism.

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investigating officer responded to the victim's home, the

defendant violated the 209A order while it was in effect. The

victim's testimony was sufficient. See Commonwealth v. Gonzalez

Santos, 100 Mass. App. Ct. 1, 3 (2021) (no corroboration or

supporting evidence required where victim's testimony alone

established all elements of crime).

The defendant also contends that the responding officer's

failure to view the Facebook messages and seize them as evidence

means the Commonwealth's case was legally insufficient. This

argument addresses the weight of the evidence, which is "a

matter wholly within the province of the jury.” Commonwealth v.

Martino, 412 Mass. 267, 272 (1992). We discern no error of law.2

2 The defendant does not argue on appeal that the testimony
of the officer and the victim regarding the Facebook message was
improperly authenticated digital evidence. "An item offered in
evidence must be 'what its proponent represents it to be.'"
Commonwealth v. Williams, 456 Mass. 857, 868 (2010), quoting
Commonwealth v. Nardi, 452 Mass. 379, 396 (2008). When the
relevance of digital messages depends on whether the defendant
authored them, there must be sufficient evidence to allow a jury
to conclude by a preponderance of the evidence that the
defendant authored the messages. See Commonwealth v. Purdy, 459
Mass. 442, 447 (2011). Evidence to authenticate digital
messages can include "[a]ppearance, contents, substance,
internal patterns, or other distinctive characteristics." Id.
at 447-448, citing Mass. G. Evid. § 901(b)(1), (4) (2011).

"Evidence that the defendant's name is written as the
author of an e-mail or that the electronic communication
originates from an e-mail or a social networking Web site
such as Facebook or MySpace that bears the defendant's name
is not sufficient alone to authenticate the electronic

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ii. Defendant's knowledge. The defendant argues that the

Commonwealth failed to prove that he had knowledge of the 209A

order and its terms. We are not persuaded. The Commonwealth

can prove that the defendant knew of the contents of a 209A

order by showing actual or constructive knowledge of the terms

of the order. See Commonwealth v. Crimmins, 46 Mass. App. Ct.

489, 491 (1999). "Clearly, a showing that a defendant was

served with a copy of a court order is strong evidence that a

defendant had knowledge that certain conduct would not be

permitted and could result in a criminal conviction." Delaney,

425 Mass. at 592. The investigating officer testified that

another police officer personally served the defendant with a

copy of the 209A order. He testified that when an officer

serves someone with an order, the officer typically reads the

defendant the order. The Commonwealth introduced the

defendant's 209A order into evidence, which showed that a police

officer signed the return of service portion of the order and

checked a box stating that "I certify that I have served a copy

communication as having been authored or sent by the
defendant."

Id. at 450, citing Williams, 456 Mass. at 868-869. Since this
issue was not addressed in the appellate briefing, we do not
reach the issue of whether the video was properly authenticated
digital evidence. See Travenol Lab., Inc. v. Zotal, Ltd., 394
Mass. 95, 97 (1985) (issue not raised in principal brief not
considered).

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of this Order upon the Defendant named in this Order by . . .

delivering a copy in hand to the Defendant." See Crimmins, 46

Mass. App. Ct. at 491-492 (signed return of service on 209A

order was sufficient for jury to infer knowledge even when no

box is checked denoting method of service). Although the

officer who served the 209A order did not testify at trial, that

officer's testimony was not necessary to authenticate or admit

the document. See Commonwealth v. Shangkuan, 78 Mass. App. Ct.

827, 831-832 (2011) (209A order is admissible, even without

testimony of serving officer, under official or public records

exception to hearsay rule, and its admission does not violate

confrontation clause).

Additionally, the defendant was also present at the court

hearing on March 1, 2021, when the 209A order was extended for

one year. The defendant's presence at the hearing establishes

knowledge. Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 112

n.7 (2014). The defendant's reliance on Commonwealth v. Molloy,

44 Mass. App. Ct. 306 (1998), is unavailing. In Molloy, the

defendant did not appear at annual hearings to extend the 209A

order and the Commonwealth entered no evidence that the

defendant knew of the extensions. Molloy, 44 Mass. App. Ct. at

307-308. Here, the defendant was served with the 209A order and

appeared in court for the extension hearing on March 1, 2021.

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The judge did not err in denying the defendant's motion for a

required finding of not guilty because the Commonwealth adduced

sufficient evidence that the defendant knew of the 209A order

and its terms.

2. Bench warrant. The defendant argues in the alternative

that he is entitled to a new trial because the judge abused his

discretion by failing to issue a bench warrant for the absent

officer. We review a judge's decision whether to issue a bench

warrant for abuse of discretion. See Commonwealth v. Degrenier,

40 Mass. App. Ct. 212, 215 (1996), citing Commonwealth v. Drew,

397 Mass. 65, 70 (1986). Likewise, we review a motion for a new

trial for abuse of discretion. See Commonwealth v. Jacobs, 488

Mass. 597, 600 (2021). An abuse of discretion results from "a

clear error of judgment in weighing the factors relevant to the

decision, such that the decision falls outside the range of

reasonable alternatives" (quotations and citations omitted).

L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). When the

motion judge was also the trial judge, as here, we accord

"special deference." Commonwealth v. Robertson, 88 Mass. App.

Ct. 52, 59 n.14 (2015).

Criminal defendants have the right under the Sixth

Amendment to the United States Constitution to present witnesses

for their defense and to compel their attendance at trial. See

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Drew, 397 Mass. at 69-70, citing Washington v. Texas, 388 U.S.

14, 19 (1967). Such a right, however, is not absolute. See

Commonwealth v. Blaikie, 375 Mass. 601, 608-609 (1978) (holding

that defendant's constitutional rights to compulsory process

were not violated where defendant failed to show that witness

"had personal knowledge of relevant factors bearing on the

credibility" of testifying witnesses). When reviewing a judge's

denial of the defendant's request for a bench warrant, we must

determine whether the witness was "necessary to an adequate

defense." Drew, 397 Mass. at 69. Whether a witness is

necessary requires that the judge "consider the proffered

testimony in the light of other evidence." Id. at 70. There

must be a showing that the witness's testimony would be

"relevant, material, and not cumulative." Blaikie, 375 Mass. at

610.

The defendant failed to show that the officer's testimony

would be relevant and material. After the officer failed to

appear, the defendant proffered that the officer's testimony

would come in for impeachment:

"[The victim] had stated that she did not tell the
police that [the defendant] came to her house in
August of 2022. [The officer] would impeach that by
saying, 'I spoke to [the victim], and she reported
[the defendant] coming to the house in August of
2022.' So that would impeach her by saying, 'I never
told the officer or the police that he came to the
house.'"

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The defendant based his offer of proof solely on the officer's

police report. In the report, the officer wrote that upon

arriving at the victim's house, "I spoke with parties on scene

including the victim [], her brother and witness [] and her

boyfriend []." The officer did not attribute any statements to

the victim, nor did he state who called the police to report the

purported 209A violation.

The police report did not support the line of impeachment

proposed in the offer of proof. The defendant conceded that he

based his offer of proof entirely on the police report because

he did not have the opportunity to interview the officer.

Impeachment by prior inconsistent statement, by its nature,

requires that the witness made a prior statement. The officer

did not attribute any statements to the victim. Based on the

offer of proof and evidence to support it, there would have been

nothing on which to impeach the witness. Drew, 397 Mass. at 70

(gauging whether witness is necessary by "consider[ing] the

proffered testimony in the light of other evidence").

The defendant argues that it is possible that the officer

would testify that the victim called 911 and made a false

report. Yet this contention rests entirely on speculation.

There is no evidence that the officer would have given this

testimony. The defendant cites Commonwealth v. Degrenier,

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supra, for the proposition that the defendant need not make any

showing that the missing witness "would likely testify as the

defendant hoped." Degrenier, 40 Mass. App. Ct. at 215 n.3

("[w]e are unaware of any requirement upon the defendant in such

circumstances to make a showing by way of affidavit that [the

absent witness] would likely testify as the defendant hoped").

This does not negate the requirement to make a preliminary

showing that the witness was necessary, i.e., that the witness's

testimony would be relevant, material, and non-cumulative. The

judge acted within his discretion to deny the request for a

bench warrant.

On the record available, the officer's impeachment

testimony would be, at best, collateral. See Commonwealth v.

Chase, 372 Mass. 736, 747 (1977) ("Extrinsic evidence on a

collateral matter may be introduced at trial for the purposes of

impeachment only in the discretion of the judge"). The victim

testified at trial that she did not speak with the officer about

the defendant coming to her house in August 2022. In his police

report, the officer wrote that he "spoke with" the victim.

While this testimony might reveal a subtle shift in memory, it

does not bear on the victim's tendency to make a false report of

a 209A violation. This is especially true given that the August

2022 incident occurred after the October 2021 incident involving

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the Facebook messages and video. If this testimony rose to the

level of impeachment, the judge was within his discretion not to

issue a bench warrant for impeachment on a collateral matter.

There is no indication in the record why the officer failed

to appear at trial. The prosecutor asked the police prosecutor

at Brockton for the officer's whereabouts, and the police

prosecutor was unsure. Although we do not commend the officer's

unexplained failure to appear at trial, we cannot say that the

judge abused his discretion by denying the defendant's request

for a bench warrant.

Judgment affirmed.

By the Court (Neyman, Singh &
Toone, JJ.3),

Clerk

Entered: January 28, 2025.

3 The panelists are listed in order of seniority.

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