Commonwealth v. Theodore Hancock, Jr.

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

24-P-913

COMMONWEALTH

vs.

THEODORE HANCOCK, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the District Court, the defendant,

Theodore Hancock, Jr., was convicted of malicious destruction of

property valued at $1,200 or less, G. L. c. 266, § 127; larceny

of property valued at $1,200 or less, G. L. c. 266, § 30; and

assault and battery on a family or household member, G. L.

c. 265, § 13M. The defendant appeals, arguing that the

Commonwealth did not prove that he maliciously intended to

damage property, and that a substantial risk of a miscarriage of

justice arose from two aspects of the jury instructions. As to

the larceny count, the defendant argues that the judge should

have instructed the jury to consider whether he had a mistaken

belief that the cell phone he took was his own. As to the count
for the assault and battery on a family or household member, the

defendant contends that the judge omitted one of the statutory

factors for determining whether a substantive dating

relationship existed. We affirm.

Background. The defendant and the victim were in a

romantic relationship for about one year, during which the

defendant lived with the victim and her children. In early

March 2023, the defendant and victim broke up; the defendant

began moving out, but left behind boxes of his belongings and a

television. The victim took back the defendant's key to her

apartment.

One week after the breakup, on the evening of March 12,

2023, the victim's apartment buzzer rang. Because the victim

was not expecting anyone, but "had a feeling" that it might be

the defendant, she did not answer the buzzer and instructed her

children not to answer it. The buzzer rang several more times

over a period of a couple of minutes. The victim sent her

children to their bedrooms while she sat in her living room.

Thereafter, the victim received a text message from the

defendant asking if she was at home, to which she replied, "Yes,

I am home. Please leave me alone. My children are here." The

door to the apartment was locked, the deadbolt was on, and a

chair was wedged under the doorknob.

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After gaining access to the building, the defendant kept

trying to open the victim's apartment's front door. The

defendant said he was there to get his television. The victim

replied she would bring the television to him the next day, but

that her children were home, so she did not want him there.

Suddenly, the defendant kicked in the apartment door, damaging

the door frame and knocking over the chair. The defendant

walked into the living room, picked up his television, and left

the apartment building.

The victim took the boxes of the defendant's belongings and

put them in the hallway outside her apartment. She found the

defendant's cell phone and put it inside one of the boxes. A

short time later, the defendant regained access to the building

and came back into the victim's apartment. He said he was

looking for his cell phone and looked around the living room for

it. The victim told him that all of his belongings were outside

the apartment and that he should take them and leave. After the

defendant refused to do so, the victim began video-recording him

on her cell phone. The victim yelled that she did not have the

defendant's cell phone, told him to get out of her apartment,

and accused him of breaking down her door. The defendant asked

the victim to call his cell phone, which she refused to do. He

took the victim's cell phone out of her hands and held it up out

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of her reach. Then the defendant left the apartment with the

victim's cell phone.

The victim followed the defendant into the hallway and

downstairs to the ground floor, trying to grab her cell phone.

The defendant grabbed the victim's arms, "slammed" her to the

ground, and placed his hand around her neck. The defendant then

left with the victim's cell phone. Later that night, the police

arrested the defendant, retrieved the victim's cell phone, and

returned it to her.

On the counts on which he was later convicted, the

defendant moved for a required finding of not guilty, which the

judge denied.1 On a count alleging larceny from the person, the

jury convicted the defendant of the lesser-included offense of

larceny of property valued at $1,200 or less; the jury also

convicted the defendant of malicious destruction of property

valued at $1,200 or less, and assault and battery on a family or

household member. The defendant appeals.

Discussion. 1. Sufficiency of evidence of malicious

intent to damage property. The defendant argues that the

Commonwealth failed to prove that he had a malicious intent when

he damaged the victim's apartment's door frame, and so the judge

1 The judge allowed a required finding of not guilty as to a
count alleging breaking and entering with intent to commit a
felony. No issue is before us pertaining to that count.

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erred by denying his motion for a required finding of not

guilty.

We review the sufficiency of the evidence to determine

"whether, after viewing the evidence in the light most favorable

to the [Commonwealth], any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass.

671, 677 (1979). For malicious destruction of property, "the

Commonwealth must prove that the act was done . . . in 'a state

of mind of cruelty, hostility or revenge'" (citation omitted).

Commonwealth v. Chambers, 90 Mass. App. Ct. 137, 143 (2016).

See Commonwealth v. Lounge, 87 Mass. App. Ct. 906, 908 (2015).

The defendant asserts that he "was motivated solely by his

desire to retrieve his television from [the victim]'s

apartment." In his view, his breaking down the door was simply

"a means to that end." Commonwealth v. Redmond, 53 Mass. App.

Ct. 1, 4 (2001) (evidence did not prove that damage to door

during burglary "was more than a means to that end"). See

Commonwealth v. Woods, 94 Mass. App. Ct. 761, 769 (2019) (where

defendant broke down neighbor's door while trying to hide from

police, "[t]here is no evidence that the defendant was motivated

by animus or hostility . . . his destruction of her door was

. . . an incidental consequence").

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Viewed in the light most favorable to the Commonwealth, the

evidence was sufficient for a rational juror to conclude that

the defendant's breaking down the victim's apartment door was

more than an "incidental consequence" of retrieving his

television. Woods, 94 Mass. App. Ct. at 769. See Commonwealth

v. Gordon, 82 Mass. App. Ct. 227, 233 (2012) (evidence

sufficient that destruction of property "was not incidental to

some other venture or purpose" despite defendant's lack of

hostility toward owners and stated purpose of releasing rage).

The defendant kicked in the door knowing that the victim and her

children were inside. He did so after the victim denied him

access to her apartment, asked him to leave, and offered to

bring the television to him the next day. "The property injury

here . . . could be viewed by the jury as going well beyond the

incidental." Commonwealth v. Wynn, 42 Mass. App. Ct. 452, 456

(1997). The evidence supported an inference that the defendant

acted out of "cruelty, revenge, or hostility." Lounge, 87 Mass.

App. Ct. at 908.

2. Jury instructions. The defendant argues that the

judge's charge to the jury should have included an honest but

mistaken belief instruction, and improperly omitted one of the

factors the jury could consider in determining the existence of

a substantive dating relationship. Because the defendant did

not object on either ground at trial, we review each claim for

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"a substantial risk of a miscarriage of justice." See

Commonwealth v. Marinho, 464 Mass. 115, 122 (2013).

a. Honest but mistaken belief. As to the larceny count,

the defendant contends that the trial evidence adequately

established that he took the victim's cell phone because he

thought it was his own, and so the judge was required to

instruct on a defense of honest and reasonable, but mistaken,

belief or claim. See Commonwealth v. Vives, 447 Mass. 537, 542

(2006). See also Commonwealth v. Liebenow, 470 Mass. 151, 161-

162 & n.15 (2014). He argues that his trial lawyer was

ineffective for not having requested such an instruction.

To raise a defense of honest but mistaken belief, the

defendant was required, before trial, to notify the Commonwealth

and the court of his intent to do so pursuant to Mass. R.

Crim. P. 14 (b) (3), as appearing in 442 Mass. 1518 (2004). See

Vives, 447 Mass. at 542 n.4; Commonwealth v. Ryan, 93 Mass. App.

Ct. 486, 492 (2018). The defendant failed to give that notice,

and so the defense was not available to him.

"In any event, even assuming the defendant adequately

raised the defense, the Commonwealth provided sufficient

evidence to disprove it." Ryan, 93 Mass. App. Ct. at 492. The

victim's and the defendant's cell phones were made by different

manufacturers, reducing the likelihood that one could be

mistaken for the other. The video recording that the victim

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made with her cell phone contains no statement by the defendant

that he thought that the cell phone the victim was holding was

his own. Indeed, in the video recording the defendant can be

heard repeatedly demanding that the victim call his lost cell

phone; that showed that he believed that the cell phone she was

holding was her own and not his. "A rational jury could have

rejected the defendant's claim of honest belief based on this

evidence." Ryan, supra at 493.

For the first time on appeal, the defendant argues that

trial counsel was ineffective for failing to request an honest

but mistaken belief instruction. We may resolve an ineffective

assistance claim on direct appeal only if "the factual basis of

the claim appears indisputably on the trial record."

Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994).

"[A]n ineffective assistance of counsel challenge made on the

trial record alone is the weakest form of such a challenge

because it is bereft of any explanation by trial counsel for his

actions and suggestive of strategy contrived by a defendant

viewing the case with hindsight" (citation and quotation

omitted). Commonwealth v. Zinser, 446 Mass. 807, 810-811

(2006). At trial, defense counsel argued that the defendant

lacked the intent to permanently deprive the victim of her cell

phone. For counsel to have simultaneously pursued an

inconsistent defense that the defendant believed the victim's

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cell phone was his own would have undermined that strategy.

Based on the record before us, we cannot conclude that trial

counsel's conduct fell below the standard of Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974).

b. Factors for determining substantive dating

relationship. On the assault and battery count, the judge

instructed that the definition of family or household member

included persons who have been in a substantive dating

relationship. The defendant argues that a substantial risk of a

miscarriage of justice arose because the instruction on

determining proof of a substantive dating relationship omitted

one of the statutory factors, "whether the relationship was

terminated by either person," G. L. c. 265, § 13M, as amended

through St. 2014, c. 260, § 23.2

Paraphrasing the Criminal Model Jury Instructions for Use

in the District Court 6.275 (2019), the judge instructed the

2 That statute provides:

"the trier of fact shall determine whether a relationship
is substantive by considering the following factors: the
length of time of the relationship; the type of
relationship; the frequency of interaction between the
parties; whether the relationship was terminated by either
person; and the length of time elapsed since the
termination of the relationship" (emphasis added).

G. L. c. 265, § 13M, as amended through St. 2014, c. 260, § 23.

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jury on the "family or household member" element of G. L.

c. 265, § 13M as follows:

"[T]wo persons are family or household members if . . .
they are or have been in a substantive dating or engaging[3]
relationship which requires consideration of the length of
the time of the relationship, the type of relationship, the
frequency of interaction between the defendant and [the
victim], and the length of time that has elapsed since the
termination of the relationship." (Emphases added.)

The defendant did not object.

During deliberations, the jury asked: "Does their

relationship still count as serious as defined by the law after

being broken up with?" Questioned by the judge about how he

should respond, defense counsel said, "Judge, I think you gave

the definition in your instructions. . . . And I guess I would

just suggest that they go back to that description." The judge

then re-read his prior instruction for both counsel, and defense

counsel said she was content with that instruction. For the

jury, the judge repeated his earlier instruction, again

including the phrase "are or have been in a substantive dating

. . . relationship," but omitting the phrase "whether the

relationship was terminated by either person." About thirty

minutes later, the jury returned with a guilty verdict.

3 The defendant does not argue that he was prejudiced by the
judge's use of the word "engaging" instead of "engagement,"
G. L. c. 265, § 13M, and so we do not consider the issue.

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We conclude that no substantial risk of a miscarriage of

justice arose from omission of the phrase "whether the

relationship was terminated by either person," G. L. c. 265,

§ 13M (c) (iii), from the instruction on the factors to be

considered by the jury in determining whether the relationship

was substantive. Section 13M directs that the trier of fact

"shall determine" whether a relationship is substantive "by

considering" factors including whether the relationship has been

terminated. Those factors "are not themselves elements of the

offense," and "[t]here does not need to be evidence as to each

factor." Commonwealth v. Dustin, 476 Mass. 1003, 1006 n.7

(2016).

In 2014, the Legislature amended § 13M by rephrasing the

substantive dating relationship factors to state, "whether the

relationship was terminated by either person; and the length of

time elapsed since the termination of the relationship,"

treating as two separate factors the termination of the

relationship and the length of time elapsed since.4 The

defendant argues that the 2014 amendment to § 13M shows that the

Legislature intended termination of the relationship to be "a

4 Prior to the 2014 amendment, § 13M stated, "if the
relationship has been terminated by either person, the length of
time that has elapsed since the termination of the
relationship." St. 2008, c. 534, § 1. That was identical to
the language of G. L. c. 209A, § 1 (e).

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mandatory factor" for the jury's consideration. The argument is

unavailing, because the Supreme Judicial Court has ruled that

each factor is not mandatory. See Dustin, 476 Mass. at 1006

n.7. The defendant's reading of the statute would mean that

once a relationship was terminated, it could no longer meet the

definition of a substantive dating relationship. That

interpretation would contradict the part of the statute defining

family or household members as persons who "are or have been" in

a substantive relationship. We will not interpret the statute

so that one part contradicts another. See Commonwealth v.

Rainey, 491 Mass. 632, 642 (2023) ("[w]e will not adopt a

literal construction of a statute if the consequences of such a

construction are absurd or unreasonable" [citations and

quotations omitted]). Cf. Scione v. Commonwealth, 481 Mass.

225, 238 (2019) (where defendant and victim dated for four years

but broke up six years prior to incident involving explosive

device, defendant was family or household member as defined by

c. 209A); Commonwealth v. Gordon, 407 Mass. 340, 347 (1990)

(rejecting defendant's interpretation of prior version of G. L.

c. 209A, § 7, positing that "vacate" did not mean "remain

away").

Moreover, any ambiguity raised by omission of that language

from the jury charge was dispelled by the jury's question and

the judge's response to it. See Commonwealth v. King, 23 Mass.

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App. Ct. 88, 91 (1986). The judge's instruction that family or

household members included persons who "are or have been in a

substantive dating . . . relationship" (emphasis added) made

clear that § 13M may apply to persons whose relationship has

ended. Evaluating the jury charge as a whole and interpreting

the words as would a reasonable juror, see Marinho, 464 Mass. at

122, we are satisfied that the instructions conveyed the legal

concept of a "substantive dating relationship." The instruction

did not direct the jury to consider any improper factor.

Contrast C.O. v. M.M., 442 Mass. 648, 655 (2004) (in finding

substantive dating relationship, G. L. c. 209A, § 1, judge

improperly considered age of plaintiff and fact that criminal

complaint had issued, which were not statutory factors).

Judgments affirmed.

By the Court (Desmond,
Grant & Hodgens, JJ.5),

Clerk

Entered: May 16, 2025.

5 The panelists are listed in order of seniority.

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