Commonwealth v. Derunn Funches.

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-477

COMMONWEALTH

vs.

DERUNN FUNCHES.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Boston Municipal Court, the

defendant, Derunn Funches, appeals from two convictions of

violating an abuse prevention order, G. L. c. 209A, § 7 (209A

order). As to the conviction based on the defendant's conduct

in June 2021 (Juneteenth contact), the Commonwealth concedes

that it did not prove the defendant knew of the relevant 209A

order. We agree, and accordingly reverse that conviction. As

to the conviction based on the defendant's contacting the victim

on July 28, 2020, by the social media platform Instagram

(Instagram contact), he argues that the judge erred in admitting

1 We spell the defendant's name as in the complaints.
(1) the victim's testimony that their romantic relationship was

"[v]ery toxic, very abusive," (2) an Instagram message the

victim received from an account with a username containing

"slimdealz," which the victim testified was the defendant's

Instagram handle and nickname, and (3) a redacted Federal

indictment stating that he was known as "Slim Dealz." We affirm

the defendant's conviction based on the Instagram contact.

Background. The defendant and the victim first met when

the victim was a teenager and they dated from about 2018 to

2020. Beginning in about 2012, they communicated with each

other by Instagram. The defendant's Instagram handle included

his nickname, "Slimdealz."

The relationship broke up by April 25, 2020, when the

victim obtained a 209A order requiring that the defendant have

no contact with her and stay at least one hundred yards away

from her. At a hearing on May 8, 2020, which the defendant

attended, a judge extended the 209A order until May 7, 2021, and

scheduled a new extension hearing for that date.

The victim set her Instagram account to restrict messages

from the defendant. In July 2020, she made an Instagram post

commemorating the recent death of her uncle. In response, she

received an Instagram direct message from the defendant that

read, "I no I'm not suppose to speak to u but I'm sorry RIP."

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On May 7, 2021, the defendant did not attend the extension

hearing on the 209A order. The victim did appear, and a judge

extended the 209A order for another year.

In June 2021, at a Juneteenth celebration at a public park,

the defendant made eye contact with the victim and walked over

to about fourteen feet away from her. The victim reported the

Juneteenth contact to the Boston police, and it was investigated

by Officer Ashley Sena and Detective David Williams.

Based on the Instagram contact and the Juneteenth contact,

the defendant was charged in two complaints for violation of a

209A order. The defendant moved to dismiss the complaint

pertaining to the Instagram contact on the ground that the

police report of Officer Anthony Parham submitted in support of

the application for that complaint, which stated that the

contact had been by Facebook rather than Instagram, did not

establish probable cause. The judge denied the motion to

dismiss. At trial, a jury convicted the defendant of both

violations. The defendant appeals.

Discussion. 1. Knowledge of May 7, 2021 extension of 209A

order. The Commonwealth concedes that at trial it had failed to

prove that at the time of the Juneteenth contact the defendant

knew that the 209A order had been extended. We agree with the

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Commonwealth's concession.2 See Commonwealth v. Tiernan, 96

Mass. App. Ct. 588, 589 n.2 (2019). To convict the defendant of

violating a 209A order, the Commonwealth was required to prove

that "the defendant had knowledge of the order" (citation

omitted). Id. at 590. The Commonwealth did not introduce any

such evidence. Because the defendant had not appeared at the

most recent extension hearing, "[t]he last thing the defendant

could be held to have known was that he could have no contact

with [the victim] pursuant to a court order that expired on [May

7, 2021]." Commonwealth v. Molloy, 44 Mass. App. Ct. 306, 309

(1998). Contrast Commonwealth v. Henderson, 434 Mass. 155, 162

(2001) (personal service of extended order not required and

notice of subsequent hearing sufficient, because order was

extension of temporary order pursuant to G. L. c. 209A, § 4).

We reverse the defendant's conviction based on the Juneteenth

contact.3

2 There is no similar flaw as to proof of the defendant's
knowledge of the 209A order on which his conviction for the
Instagram contact was based. The defendant received notice of
that 209A order in person at the May 8, 2020 hearing. See
Tiernan, 96 Mass. App. Ct. at 589. Further, the content of his
Instagram message, "I no I'm not suppose to speak to u," proved
that he knew of the 209A order. See Commonwealth v. Gonsalves,
99 Mass. App. Ct. 638, 640 (2021) (defendant's text messages
that victim "put papers on" him proved notice).

3 In his brief, the defendant argues that the judge erred in
denying him a continuance of trial to obtain testimony of
Officer Sena and Detective Williams about the Juneteenth
contact. Putting aside that at trial the defendant stipulated

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2. Evidentiary issues. As to the conviction based on the

Instagram contact, the defendant argues that the judge erred in

admitting (1) the victim's testimony that her relationship with

the defendant was "[v]ery toxic, very abusive," (2) the

Instagram message to the victim from the "slimdealz" account,

and (3) a redacted Federal indictment. Because the defendant

raised these issues in motions in limine and then objected

during trial on the same grounds, we review for prejudicial

error. See Commonwealth v. Hayes, 102 Mass. App. Ct. 455, 465

(2023). See also Commonwealth v. Grady, 474 Mass. 715, 719

(2016). We conclude there was no prejudicial error.

a. Prior hostile relationship. The defendant contends

that the judge "allow[ed] the Commonwealth to admit a previously

tried (and found not guilty) 209[A] violation for the purpose of

establishing that the relationship existed previously and that

to the testimony of those two witnesses based on their police
reports, our reversal of the conviction based on the Juneteenth
contact renders that claim moot. See Commonwealth v. Tavares,
482 Mass. 694, 695 n.2 (2019). At oral argument, the
defendant's counsel argued that the defendant also sought the
continuance to procure Officer Parham's testimony about the
Instagram contact. However, the defendant did not argue at
trial or in his appellate brief that he sought Officer Parham's
testimony, and so he waived that claim. See Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The
appellate court need not pass upon questions or issues not
argued in the brief").

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it soured and turned hostile." That is not an accurate

description of what transpired at trial.

The Commonwealth moved in limine to admit evidence of the

defendant's prior bad acts to show the hostile relationship

between him and the victim. The judge precluded the

Commonwealth from introducing evidence of a 2020 incident

"because [the defendant] was found not guilty by a jury" in a

criminal case arising from it. See Commonwealth v. Dorazio, 472

Mass. 535, 547 (2015) (prior bad act that resulted in acquittal

not admissible). No evidence as to that incident was admitted,

and so that claim of the defendant on appeal is baseless.

The judge did rule that the Commonwealth could introduce

evidence that the defendant and the victim "were in a dating

relationship," and that "it turned hostile." The victim then

testified, over the defendant's objection, that the dating

relationship between her and the defendant was "[v]ery toxic,

very abusive." That was permissible testimony. See

Commonwealth v. Oberle, 476 Mass. 539, 550-552 (2017) (victim's

testimony about defendant's prior domestic violence admissible).

b. Instagram message. The defendant argues that the judge

erred in admitting evidence of the Instagram message from

"slimdealz" to the victim. He argues that the judge failed to

make a threshold determination that it was authenticated as

authored by the defendant. See Commonwealth v. Meola, 95 Mass.

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App. Ct. 303, 308 (2019) ("In the case of a digital

communication that is relevant only if authored by the

defendant, a judge is required to determine whether there is

sufficient evidence to persuade a reasonable trier of fact that

it is more likely than not that the defendant was the author").

The argument is unavailing.

The defendant moved in limine to exclude the Instagram

message because Officer Parham's report had referred to it as a

Facebook message. In ruling to deny that motion, the judge

probed the basis of the Commonwealth's proof establishing the

authenticity of the Instagram message. That sufficed as a

threshold determination.

We agree with the judge that there were adequate

"confirming circumstances" to establish by a preponderance of

evidence that the defendant wrote the Instagram message.

Commonwealth v. Purdy, 459 Mass. 442, 450 (2011). The victim

testified that beginning in about 2012, the defendant had

communicated with her using an Instagram handle containing

"slimdealz," which was his nickname. See Commonwealth v. Alden,

93 Mass. App. Ct. 438, 440 (2018), cert. denied, 587 U.S. 987

(2019) (defendant's prior use of telephone number was evidence

he sent text messages). Contrast Commonwealth v. McMann, 97

Mass. App. Ct. 558, 560-561 (2020) (Instagram message not

authenticated, where evidence did not establish that defendant

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and victim previously communicated through Instagram). The

Instagram message was sent from an account bearing the

defendant's "distinctive nickname," Commonwealth v. Welch, 487

Mass. 425, 442 (2021), and displaying his profile photograph,

see Purdy, supra at 451 (e-mail messages were authenticated by

attached photograph of defendant). The contents of the

Instagram message also authenticated it: the jury could infer

that the statement "I no I'm not suppose to speak to u" provided

a basis to believe that the sender was the defendant, who was

forbidden by the 209A order from contacting the victim. See

Welch, supra at 441-442 (text messages contained private details

of defendant's and victim's lives, including recent arrest).

c. Federal indictment. The defendant argues that the

judge erred in admitting as an exhibit a heavily redacted copy

of a Federal indictment. The unredacted portion included part

of the caption that read, "UNITED STATES OF AMERICA v. . . .

DERONN FUNCHES, a/k/a 'Slim Dealz.'"4 The defendant argues that

the judge should have excluded the exhibit because the risk of

4 We note that the Federal indictment spelled the
defendant's first name as "Deronn," but the complaint arising
from the Instagram contact spelled it "Derunn." Also, the
Federal indictment spelled his nickname "Slim Dealz," while the
Instagram screenshot spelled it "slimdealz." The defendant does
not argue that those discrepancies prejudiced him, and so we do
not consider that issue.

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unfair prejudice outweighed its probative value.5 See

Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27 (2014).

The Commonwealth moved in limine to introduce the redacted

Federal indictment as evidence that the defendant was known as

"Slim Dealz," which tended to prove the authenticity of the

Instagram message. The judge ruled that the prosecutor could

introduce the indictment for the limited purpose of proving that

fact.

During trial, the victim testified repeatedly that the

defendant's Instagram handle included his nickname, "Slimdealz."

Then the prosecutor showed her the redacted indictment, and she

testified, without objection, that it stated the defendant's

name, "a/k/a Slimdealz." When the prosecutor offered the

document into evidence, defense counsel objected, and the judge

overruled the objection. The judge gave a limiting instruction,

telling the jury:

"It's not being introduced to show that [the defendant] has
a bad character, or he was involved in other criminal
activity, and you are not to accept it or draw any of that
conclusion. It's being introduced to establish that [the
defendant], at some point in time, was also known as
SlimDealz . . . . You are not to infer that the fact that
this is a court document that that establishes any

5 At oral argument, the defendant argued that only the first
page of the nine-page indictment should have been admitted.
Because he raised this claim for the first time at oral
argument, we do not consider it. See Mass. R. A. P.
16 (a) (9) (A).

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wrongdoing or any criminal involvement . . . or any prior
bad acts."

Before the jury, no one referred to the exhibit as an

indictment; the prosecutor said it was "a court filing," and the

judge described it as "a [F]ederal document."

We agree with the defendant that the redacted Federal

indictment had little or no probative value. An indictment is

merely an accusation and not evidence. See Commonwealth v.

Rodriguez, 92 Mass. App. Ct. 774, 783 (2018) ("Indictments have

no probative value or evidentiary significance"). See also

Commonwealth v. Kelley, 33 Mass. App. Ct. 934, 935 (1992).

Contrast Commonwealth v. Collins, 496 Mass. 151, 157-158 (2025)

(redacted criminal docket admissible to prove defendant was

convicted of felony and thus ineligible to obtain firearm

license). Even less probative is the unredacted portion of this

indictment -- the caption naming the defendant and asserting

that he was known as "Slim Dealz" without stating any basis of

knowledge for that information. Cf. Commonwealth v. Wardsworth,

482 Mass. 454, 467-469 (2019) (police testimony that defendant's

name had been "entered into the database as a [gang] associate"

inadmissible).

However, admission of the redacted Federal indictment posed

very little risk of unfair prejudice. Most importantly, the

information in the exhibit was cumulative of the victim's

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testimony that the defendant's nickname and Instagram handle

were both "slimdealz," and of the Instagram message itself,

which evidenced that the sender was forbidden from communicating

with the victim. See Commonwealth v. Wilson, 427 Mass. 336, 348

(1998) ("improperly admitted hearsay did not prejudice the

defendant because it was merely cumulative of properly admitted

evidence"). As in Collins, 496 Mass. at 157, the exhibit was

heavily redacted. The jury was not told that it was an

indictment, and the judge instructed that the jury could not

consider it as evidencing "any criminal involvement." See

Commonwealth v. Samia, 492 Mass. 135, 149 (2023) ("proper jury

instructions can render potentially prejudicial evidence

harmless"). Though we are troubled by the prosecutor's

reference in closing to the exhibit as a "court finding," which

the Commonwealth conceded at oral argument was improper, we

conclude that the risk of unfair prejudice did not outweigh the

probative value of the redacted Federal indictment.

Conclusion. The judgment on complaint no. 2206CR000022,

charging a 209A violation arising from the defendant's

Juneteenth contact, is reversed, the verdict is set aside, and

judgment shall enter for the defendant. The judgment on

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complaint no. 2106CR000039, charging a 209A violation arising

from the defendant's Instagram contact, is affirmed.

So ordered.

By the Court (Ditkoff, Hand &
Grant, JJ.6),

Clerk

Entered: August 26, 2025.

6 The panelists are listed in order of seniority.

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