Commonwealth v. Andrew Brown.

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-621

COMMONWEALTH

vs.

ANDREW BROWN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A two-count complaint issued from the Roxbury Division of

the Boston Municipal Court charging the defendant, Andrew Brown,

with (1) violation of an abuse prevention order (G. L. c. 209A,

§ 7), and (2) stalking in violation of an abuse prevention order

(G. L. c. 265, § 43 [b]). On the first count, a jury returned a

guilty verdict, and on the second count returned a guilty

verdict of the lesser included offense of violation of an abuse

prevention order. The trial judge imposed concurrent suspended

sentences of fifteen months in the house of correction. Three

months later, leaving the conviction of the first count

undisturbed, the judge vacated the conviction of the second

count after concluding that the absence of a specific unanimity
instruction created a substantial risk of a miscarriage of

justice. The judge also stated that the Commonwealth could

retry the defendant on that count.

The defendant filed a direct appeal from his convictions

and filed a petition for interlocutory review of the judge's

postjudgment decision, raising a double jeopardy claim, with a

single justice of the Supreme Judicial Court pursuant to G. L.

c. 211, § 3. Allowing the defendant's petition, the single

justice transferred the case to this court for a determination

of the "defendant's claim that any retrial on count two of the

complaint is barred by principles of double jeopardy." Before

us now is the consolidated direct appeal and interlocutory

appeal. For the reasons set forth herein, we affirm the

defendant's conviction of the first count of the complaint and

conclude that the defendant cannot be retried on the second

count. We therefore reverse the judgment on count two of the

complaint, set aside the verdict, and enter judgment for the

defendant on that count.

Instruction on lesser included offense. Without any

objection by the defense, the trial judge provided a lesser

included offense instruction on the second count that charged

aggravated stalking. Consistent with the jury instruction, the

verdict slip gave jurors the option under the second count of

convicting the defendant of aggravated stalking or the lesser

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included 209A violation. On appeal, the defendant contends that

this instruction should not have been provided. We discern no

error and no "substantial risk of a miscarriage of justice."

Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (where defendant

did not object at trial appellate review limited to whether

there was any error, and if so, whether that error created

substantial risk of a miscarriage of justice).

Violation of a 209A order is a lesser included offense of

aggravated stalking. Edge v. Commonwealth, 451 Mass. 74, 77

(2008). "[W]hen the evidence permits a finding of a lesser

included offense, a judge must, upon request, instruct the jury

on the possibility of conviction of the lesser crime" (citation

omitted). Commonwealth v. Roberts, 407 Mass. 731, 737 (1990).

"This requirement applies to requests made by the Commonwealth."

Commonwealth v. Taylor, 486 Mass. 469, 485 (2020). The evidence

showed that the 209A order issued on July 20, 2021, and required

the defendant to refrain from abusing the victim, avoid

contacting the victim, and stay at least one hundred yards away

from the victim. While that order was in effect, on five

separate days the defendant engaged in at least five discrete

acts that the jury could consider as violations of the 209A

order, and a combination of these acts could constitute

aggravated stalking. Jurors could rationally acquit the

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defendant of stalking and still convict him of violating the

209A order. Thus, the judge did not err in providing an

instruction on a lesser included offense.

Specific Unanimity. We disagree with the defendant's

contention that the absence of a specific unanimity instruction

requires a new trial. As previously noted, the 209A order

required the defendant to refrain from abuse, to have no contact

with the victim, and to stay away from the victim. The evidence

at trial included a text message that the defendant sent to the

victim on October 20, 2021. In an effort to prove a pattern of

conduct for the aggravated stalking charge, the Commonwealth

attempted to link the October 20 text message to four prior

incidents where the defendant made some form of contact or came

within one hundred yards of the victim, on October 11, 14, 15,

and 18. For the first time on appeal, the defendant contends

that the trial judge should have provided, sua sponte, a

specific unanimity instruction that required jurors to agree on

one of these incidents for the 209A violation that was common to

both counts of the complaint. We discern no "substantial risk

of a miscarriage of justice." Freeman, 352 Mass. at 564.

The judge repeatedly instructed jurors on the need for a

unanimous verdict: "The presumption of innocence stays with the

defendant unless and until the evidence convinces you

unanimously as a jury that the defendant is guilty beyond a

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reasonable doubt. . . . Your verdict, whether it is guilty or

not guilty, must be unanimous." At the end of the instructions,

when referencing the verdict slips, the judge once again

reminded jurors of their obligation to "arrive at a unanimous

decision." These repeated instructions, especially when made in

reference to the verdict slips, implicitly called for jurors to

agree unanimously as to each incident reflected in the verdict.

Commonwealth v. Lemar, 22 Mass. App. Ct. 170, 172 (1986).

The absence of an additional, explicit instruction --

requiring unanimity as to at least one of the five incidents --

did not create a substantial risk of a miscarriage of justice.

"[W]hen a defendant does not request a specific unanimity

instruction nor timely object to its absence, 'no substantial

risk of a miscarriage of justice' exists where 'the evidence

satisfies each element of the statute and is sufficient to

defeat a motion for a required finding of not guilty.'"

Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003),

quoting Commonwealth v. Keevan, 400 Mass. 557, 567 (1987). See,

e.g., Lemar, 22 Mass. App. Ct. at 173 (no substantial risk of a

miscarriage of justice from absence of specific unanimity

instruction where indecent assault and battery charge supported

by evidence of three incidents).

Here, viewing the evidence in a light most favorable to the

Commonwealth, any one of the five incidents in October allowed

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jurors to find beyond a reasonable doubt that the defendant

knowingly violated an existing abuse prevention order under

G. L. c. 209A, § 7. Commonwealth v. Latimore, 378 Mass. 671,

676-678 (1979). That order, extended in the defendant's

presence and in existence when the incidents occurred,

prohibited the defendant from contacting the victim: "YOU ARE

ORDERED NOT TO CONTACT THE PLAINTIFF, in person, by telephone,

in writing, electronically or otherwise, either directly or

through someone else, and to stay at least 100 yards from the

Plaintiff even if the Plaintiff seems to allow or request

contact." Despite this order, the evidence showed that the

defendant intentionally positioned his car in view of the victim

and "revved" the engine (October 11), argued with the victim on

the courthouse steps (October 14), called the victim on a cell

phone (October 15), parked behind the victim's car, within 100

feet of where the victim stood, and opened a door of her car

(October 18), and texted the victim (October 20). Given that

contact is "broadly" interpreted as well as the fact that there

are "many ways to achieve a communication," Commonwealth v.

Basile, 47 Mass. App. Ct. 918, 919 (1999), jurors could readily

find a violation of the 209A order through any of the October

incidents. "Accordingly, it does not appear likely that the

jury verdict would have been different even if the judge had

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given the specific instruction now requested by the defendant."

Commonwealth v. Comtois, 399 Mass. 668, 677 (1987).

Duplicative convictions. After trial, the judge vacated

the conviction of the second count because he believed that the

absence of a specific unanimity instruction created a

substantial risk of a miscarriage of justice. We conclude that

the conviction of the second count must be reversed, and for a

different reason –- the conviction is duplicative of the

conviction of the first count. Consequently, the defendant

cannot be retried on the second count or any portion thereof.

The complaint identified the date of count one as October

20, 2021, and of count two as "various dates between On" October

20 and 21, 2021. A bill of particulars identified seven

additional dates involving incidents related to the stalking

count. As set forth in detail above, the evidence at trial

included incidents from four of the seven dates noted in the

bill of particulars (October 11, 14, 15, and 18) as well as the

date identified in the complaint (October 20). Neither the

prosecutor's opening statement nor closing argument attempted to

link any of the evidence to a particular count of the complaint.

At first glance, the bar against duplicative convictions and

double jeopardy would not seem to apply because we are dealing

with multiple discrete acts, any one of which could

theoretically be the basis for a jury verdict.

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We faced a similar situation in Commonwealth v. Mahoney, 68

Mass. App. Ct. 561 (2007). In that case, a jury convicted the

defendant of embezzlement and larceny of $44,000 through a

series of thefts over a year and one-half. Id. at 561, 566.

The Commonwealth argued that the convictions were not

duplicative because the convictions were derived from evidence

of separate and discrete acts of thefts, and jurors could have

found one of the thefts was a larceny while another was

embezzlement. Id. at 566. We noted, "The problem with the

Commonwealth's contention is that the thefts in this case were

neither charged nor tried in this manner." Id. The

Commonwealth did not charge the various thefts as separate

crimes, and the judge did not provide a specific unanimity

instruction. Id. Despite the various dates of the thefts, the

"convictions arose from the same conduct on the part of the

defendant." Id. As such, the convictions were duplicative.

We reach a similar result here. In the charging

instrument, the Commonwealth never attempted to distinguish the

defendant's discrete acts in violation of the 209A order as

separate crimes. At trial, the Commonwealth never attempted to

link the evidence to a particular count of the complaint. The

jury instructions also drew no distinctions and did not require

jurors to agree unanimously that any particular act constituted

a 209A violation. Given these circumstances, we believe that

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the defendant's convictions effectively "arose from the same

conduct on the part of the defendant" and are duplicative.

Mahoney, 68 Mass. App. Ct. at 566.

Resentencing. In a case such as this where the first count

(209A violation) is a lesser included offense of the second

count (aggravated stalking), the proper approach would have been

to "submit the [two] charges to the jury and, if guilty verdicts

were returned on more than one, to dismiss the less serious

charge or charges prior to entering a judgment of conviction and

sentencing on the most serious crime." Commonwealth v. Jones,

382 Mass. 387, 394-395 (1981). That did not happen here;

instead, in a postconviction hearing, the trial judge "vacated"

the judgment on the second count of the complaint, and he

considered, but declined, to impose a different sentence on the

conviction of the first count. In light of the judge's

consideration of the sentence following action on the conviction

that we now deem duplicative, we are satisfied that a further

sentencing hearing is not required in these circumstances.

The judgment on count one of
the complaint is affirmed;
the judgment on count two
of the complaint is
reversed, the verdict is
set aside, and judgment for
the defendant shall enter
on that count.

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By the Court (Neyman,
Hershfang & Hodgens, JJ. 1),

Clerk

Entered: August 14, 2024.

1 The panelists are listed in order of seniority.

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