Commonwealth v. Dennis C. Bain.

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-459

COMMONWEALTH

vs.

DENNIS C. BAIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Before us is the defendant's consolidated appeal from his

conviction of violating an abuse prevention order, G. L.

c. 209A, § 7, and from an order revoking his probation. We

affirm.

Background. After twenty-eight years of marriage, the

defendant and his wife divorced in 2012. At an ex parte hearing

held on June 18, 2019, a District Court judge granted the former

wife a temporary abuse prevention order against the defendant

pursuant to G. L. c. 209A, § 4. After a hearing on July 2,

2019, at which both parties were present, the judge granted an

abuse prevention order for a two-year period, through July 2,

2021. The defendant was ordered to not abuse the former wife,

not contact her, and stay away from her residence and workplace.
On May 7, 2020, a complaint issued charging the defendant

with violating the abuse prevention order under G. L. c. 209A,

§ 7, on April 20, 2020. At a jury trial, which commenced on

March 1, 2022, 1 the Commonwealth presented evidence that the

defendant violated the no-contact provision in the order by

enclosing three letters in child support payments he sent to his

former wife by mail between September 2019 and April 2020. For

example, in one letter the defendant wrote, "Please have a heart

and write to me about the children and how they are all doing?"

Another letter asked, "By the way how are the children? Please

inform me as they are also my children." As we have noted, the

defendant was found guilty of the offense. The judge sentenced

the defendant to one year in the house of correction, suspended

for eighteen months with certain conditions of probation,

including completion of an Intimate Partner Abuse Education

Program (IPAEP), compliance with any restraining orders, and an

order to stay away from, have no contact with, and not abuse his

former wife.

On April 1, 2022, the defendant was served with a notice of

a probation violation and hearing alleging that he violated the

conditions of probation by contacting his former wife in

violation of the abuse prevention order. The notice

1 Although the defendant proceeded pro se, stand-by counsel
was present and assisted the defendant throughout the trial.

2
subsequently was amended to include a violation based on a

failure to enroll in the IPAEP. Following a hearing on April

19, the defendant was found in violation of his probation and

was reprobated. The defendant now appeals from his conviction

and from the order revoking his probation.

Discussion. 1. The defendant's conviction of violation of

the abuse prevention order. a. Sufficiency of the evidence.

The defendant first argues that the judge erred in denying his

motion for a required finding of not guilty. We review the

denial of a defendant's motion for a required finding of not

guilty to 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). "The inferences that support a conviction need only be

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

inescapable" (quotation and citation omitted). Commonwealth v.

Ross, 92 Mass. App. Ct. 377, 378 (2017). To sustain a

conviction under G. L. c. 209A, § 7, the Commonwealth is

required to prove beyond a reasonable doubt that "(1) a valid

G. L. c. 209A order was issued by a judge, (2) the order was in

effect on the date of the alleged violation, (3) the defendant

had knowledge of the order, and (4) the defendant violated the

3
order." Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 235

(2018).

The defendant argues that the evidence was insufficient to

show that a valid G. L. c. 209A order was in effect at the

relevant time because the statute provides that any relief

granted by a judge at an initial two-party hearing "shall be for

a fixed period of time not to exceed one year." G. L. c. 209A,

§ 3. It is only at a subsequent hearing that a judge may decide

"to extend the order for any additional time reasonably

necessary to protect the plaintiff or to enter a permanent

order." Id. See Crenshaw v. Macklin, 430 Mass. 633, 636

(2000). Accordingly, as the Commonwealth concedes, it was error

for the judge on July 2, 2019, to impose the abuse prevention

order for a period of two years.

Nevertheless, as a general rule, a defendant "does not have

the option to act in violation of a court order and then, in a

subsequent criminal proceeding, assert as a defense that the

order should not have been issued." Commonwealth v. Marrero, 85

Mass. App. Ct. 911, 912 (2014). None of the exceptions to that

rule applies here. See id. at 912 n.4. First, it is not the

case that "a reasonable person in the defendant's position would

not understand what conduct was prohibited by the order, the

defendant was not aware of the order, or the defendant did not

have a reasonable opportunity to comply with the order." Id.

4
Second, the defendant had "a reasonable and effective method by

which to challenge the order directly," by moving to modify its

duration, but did not do so. Id. Third, the order was not

"transparently invalid" and did not have "only a frivolous

pretense to validity" (citation omitted). Id. Because the

order was "merely voidable, but not void," the defendant risked

"criminal prosecution and conviction" by disregarding it. Id.

There was also sufficient evidence for a rational trier of

fact to conclude that the defendant violated the abuse

prevention order. The order unambiguously required the

defendant to stay away from the former wife and not abuse or

contact her. The no-contact provision in the order barred

attempts to contact her "in person, by telephone, in writing,

electronically or otherwise."

The defendant argues that the Commonwealth failed to prove

that he lacked authority to contact his former wife by mail

because she acknowledged during her testimony an order from the

Probate and Family Court that authorized the defendant to send

her child support payments by mail. However, the former wife

did not believe that the defendant was authorized to send her

letters with the child support payments, and the jury could

reasonably conclude that the no-contact provision in the abuse

prevention order foreclosed such attempts at communication. The

defendant also read into the record a temporary order from the

5
Probate and Family Court dated June 24, 2013, which provided

that "[a]ll communication between the parties shall be by e-mail

only, absent a genuine emergency." It is not clear whether this

temporary order was still in effect in 2020 after the imposition

of the abuse prevention order in 2019. Even assuming that it

was, the temporary order allowed only e-mail communication

"absent a genuine emergency" -- not personal letters by mail in

nonemergency situations, which were prohibited by the abuse

prevention order. Viewed in the light most favorable to the

Commonwealth, the evidence was sufficient to establish each of

the essential elements of the crime of violation of an abuse

prevention order.

b. Testimony about the former wife's responses to

receiving the letters. The defendant next argues that a

substantial risk of a miscarriage of justice resulted from the

admission of irrelevant and unfairly prejudicial testimony about

the former wife's emotional responses to receiving his letters.

After the prosecutor asked her to describe the feelings she

experienced when she received the defendant's letters in the

mail, she testified that she experienced "fear" and was

"[u]pset, annoyed," as well as feeling "[a]ttacked and invaded."

The prosecutor also asked how she felt when the defendant asked

about their children, and she responded "[u]nsafe." Later, the

prosecutor elicited testimony from a Gloucester police officer

6
about the former wife's "demeanor" when she reported the

defendant's letters. The officer testified that the former wife

was "very upset," appeared to be "scared," and "she sounded like

she needed help and she wasn't getting it."

We agree that this testimony should not have been solicited

or admitted. See Commonwealth v. Gordon, 422 Mass. 816, 831

(1996) ("We urge caution in admitting evidence in criminal cases

that appears to be more related to evoking sympathy then [sic]

to proving the elements of the alleged crime or crimes"). The

issue at trial was whether the defendant violated the no-contact

provision in the abuse prevention order, and that violation did

not require "proof that the protected party was placed in fear."

Commonwealth v. Mendonca, 50 Mass. App. Ct. 684, 688 (2001).

The Commonwealth argues that its questions were warranted

because it did not know until the charge conference whether it

was proceeding under a "no abuse" (in addition to a "no

contact") theory of violation, and "[w]hether or not the victim

was fearful when she received the letters would have been

relevant to a theory of violation of the no abuse provision."

The record, however, does not support that justification. Prior

to trial, the judge denied the Commonwealth's motion to

introduce prior bad act evidence, stating that the case "will

revolve around the letters and the violation of restraining

order on 4/20/20 and only that." In her opening statement, the

7
prosecutor told the jury that the Commonwealth's case was "very

simple" and based on "a restraining order that prevented

contact." Testimony about the former wife's responses to

receiving the defendant's letters was therefore unnecessary to

prove the elements of the crime.

Because the defendant did not object to such evidence at

trial, our review is limited to whether the error in admitting

it caused a substantial risk of a miscarriage of justice.

Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010). Under

that standard, we "consider the strength of the Commonwealth's

case against the defendant (without consideration of any

evidence erroneously admitted), the nature of the error, whether

the error is 'sufficiently significant in the context of the

trial to make plausible an inference that the [jury's] result

might have been otherwise but for the error, and whether it can

be inferred 'from the record that counsel's failure to object

was not simply a reasonable tactical decision'" (citations and

footnote omitted). Commonwealth v. Alphas, 430 Mass. 8, 13

(1999). Central to this analysis is whether there is serious

doubt that the defendant's guilt has been fairly adjudicated.

See Commonwealth v. Azar, 435 Mass. 675, 687 (2002). We have no

such doubt here. The erroneous admission of the testimony was

mitigated by the judge's instruction to the jury at the start of

the case to "try the issues without fear or prejudice or bias or

8
sympathy." The Commonwealth's case that the defendant violated

the no-contact provision of the abuse prevention order by

sending his former wife letters was strong. The prosecutor did

not discuss the former wife's emotional responses to the letters

in her closing argument, and, in his final instructions, the

judge instructed the jury on only a "no contact" (not a "no

abuse") theory of violation. Accordingly, the admission of

testimony concerning the former wife's emotional responses to

receiving the defendant's letters did not create a substantial

risk of a miscarriage of justice.

2. The probation revocation. The defendant argues that

the evidence was not sufficient to prove that he violated the

terms of his probation, and that the judge erred in relying on

unreliable hearsay in concluding that he did. We disagree and

affirm the order revoking probation.

On April 1, 2022, the defendant was served with a notice of

probation violation alleging a "violation of a restraining order

[on] 3/31/22." On April 8, probable cause for the violation was

found at an initial probation violation hearing, and the

defendant was detained until a final surrender hearing was held

on April 19. Prior to that hearing, the defendant was notified

of an additional violation involving his failure to enroll in

the IPAEP. At the hearing on April 19, the defendant was found

in violation based on the failure to enroll and was reprobated.

9
"A determination whether a violation of probation has

occurred lies within the discretion of the hearing judge."

Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014). The

Commonwealth must prove a violation of probation by a

preponderance of the evidence. Commonwealth v. Nunez, 446 Mass.

54, 59 (2006). We review an order revoking probation to

determine "whether the record discloses sufficient reliable

evidence to warrant the findings by the judge that [the

defendant] had violated the specified conditions of his

probation." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594

(2000).

The hearing judge did not abuse her discretion in finding

that the defendant violated his probation. The defendant was

required as a condition of probation to complete the IPAEP. At

the revocation hearing, the probation officer presented the

judge with a letter from the director of the IPAEP which

indicated that the defendant had responded with hostility to the

director's effort to enroll him in the program, stating that

"this whole thing is bullshit" and that he would pursue a motion

to "revise and revoke" this condition of probation. Defense

counsel argued at the hearing that, because the defendant was

not represented at the time he agreed to the conditions of

probation, he may not have fully appreciated that "he must do

this program" and it was "not open for discussion." The judge

10
concluded that there was "no excuse" for the defendant's failure

to enroll in the program and directed him to do so within ten

days.

The defendant now argues, for the first time on appeal,

that the judge relied on impermissible hearsay. Although

"standard evidentiary rules do not apply to probation revocation

hearings," a finding of a probation violation must be based on

reliable evidence. Commonwealth v. Durling, 407 Mass. 108, 117

(1990). "A judge may rely on hearsay evidence at a probation

violation hearing where the evidence has substantial indicia of

reliability." Commonwealth v. Ogarro, 95 Mass. App. Ct. 662,

668 (2019). Here, as the judge noted in her probation violation

finding and disposition, the letter from the IPAEP director had

substantial indicia of reliability because it was based on the

director's personal conversation with the defendant, detailed in

its account of the defendant's reaction to the prospect of

enrollment in the program, and corroborated by defense counsel's

acknowledgment that the defendant had not enrolled. See id.,

quoting Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016)

(listing factors for assessing whether hearsay evidence is

reliable). The defendant also argues that the judge's finding

of a violation was premature because the order of probation

conditions did not require him to enroll by a specific date.

While we agree that it would have been helpful for the order to

11
set a specific enrollment deadline, it was not an abuse of

discretion for the judge to find a violation based on the

defendant's hostile response to the IPAEP director's inquiry and

his failure to enroll by the date of the revocation hearing, six

weeks into his probationary period.

Because this violation provided a sufficient basis for the

judge to reprobate the defendant, we need not consider whether

the defendant also violated the terms of his probation by

contacting his former wife through e-mail. 2 See Commonwealth v.

Vargas, 475 Mass. 86, 93 (2016), quoting Durling, 407 Mass. at

112 ("Any conduct by a person on probation which constitutes a

violation of any of the conditions of his probation may form the

basis for the revocation of that probation").

2 As to the e-mail issue, the judge's notation on the
probation violation finding and disposition appears to be
inconsistent with her findings at the hearing, as well as her
decision to modify the order of probation conditions to allow
the defendant to communicate with his former wife "about
visitation by e-mail only about the child."

12
Conclusion. We affirm the judgment of conviction and the

order revoking the defendant's probation.

So ordered.

By the Court (Vuono, Shin &
Toone, JJ. 3),

Assistant Clerk

Entered: May 8, 2024.

3 The panelists are listed in order of seniority.

13