Commonwealth v. Kyleb Carvalho.

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

25-P-816

COMMONWEALTH

vs.

KYLEB CARVALHO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of violating a harassment prevention order. See

G. L. c. 258E, § 9. He raises a number of arguments on appeal

from his conviction, none of which we need to address because,

as the Commonwealth appropriately concedes, the failure to

present any evidence via a stipulation or otherwise that the

defendant had knowledge of the order and its terms rendered the

evidence insufficient to prove the charge beyond a reasonable

doubt. Consequently, the judgment of conviction must be

reversed and the verdict set aside.

Commendably, the Commonwealth brought this issue to our

attention prior to oral argument in a letter filed pursuant to
Mass. R. A. P. 16, as appearing in 481 Mass. 1628 (2019). To

convict a defendant of a violation of a harassment prevention

order, the Commonwealth must prove "[(1)] that a court had

issued such an order; [(2)] that the order was in effect on the

date that the violation allegedly occurred; [(3)] that the

defendant knew the pertinent terms of the order; and [(4)] that

the defendant violated the order." Commonwealth v. Raymond, 54

Mass. App. Ct. 488, 492 (2002). Here, the parties stipulated to

the first two elements. The judge conducted a colloquy with the

defendant confirming his understanding of that stipulation and

the judge informed the jury that the parties had stipulated to

these two elements both in his preliminary and final

instructions to the jury.1 However, although there was no

dispute at trial that the defendant had knowledge of the order,

and it appears that the parties intended to stipulate to that

element as well, no stipulation to that effect and no evidence

regarding the third element (including that the defendant was

served with the harassment prevention order) was introduced at

trial.2

1 It bears noting that no stipulations were read to the jury
as required by Mass. R. Crim. P. 23 (a), 471 Mass. 1501 (2015).
Given our conclusion, we do not address the question whether
this failure is a significant one.

2 At one point during a discussion regarding possible
stipulations and the admissibility of video recording evidence,

2
It is "incumbent on the Commonwealth to ensure that any

stipulation concerning the existence of an element of the crime

charged or of any material fact related to proof of the crime is

presented in some manner to the jury as part of the evidence of

the case." Commonwealth v. Ortiz, 466 Mass. 475, 476 (2013).

Here, as noted, no stipulation related to the third element was

presented to the jury in any manner, thereby rendering the

evidence fatally insufficient to convict the defendant because,

as the Commonwealth concedes, there was no further evidence as

to the defendant's knowledge of the harassment prevention order.

As "a conviction premised on legally insufficient evidence

always creates a substantial risk of a miscarriage of justice,"

the judgment is reversed, and the verdict is set aside.

Commonwealth v. Kurko, 95 Mass. App. Ct. 719, 722 (2019),

defense counsel stated that the defendant would stipulate to the
first three elements of the offense.

3
quoting Commonwealth v. Montes, 49 Mass. App. Ct. 789, 792 n.4

(2000). Judgment shall enter for the defendant.

So ordered.

By the Court (Vuono,
Ditkoff & D'Angelo, JJ.3),

Clerk

Entered: February 26, 2026.

3 The panelists are listed in order of seniority.

4