Commonwealth v. William Marcelin.

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-1151

COMMONWEALTH

vs.

WILLIAM MARCELIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Boston Municipal Court, the

defendant was convicted of violating an abuse prevention order

under G. L. c. 209A, § 7 (209A order). In this consolidated

appeal of his conviction and two postconviction orders, the

defendant challenges the denial of his motion for a required

finding of not guilty, claiming that there was insufficient

evidence to establish that he violated a provision of the 209A

order requiring him to "stay away" from the victim. The

defendant also argues that the judge erred when he failed to sua

sponte instruct the jury about the conditions of the order, and
that there were other violations of his constitutional rights.1

We agree with the defendant that there was insufficient evidence

to sustain a conviction for violating a 209A order and thus

reverse.

Factual and procedural history. On July 18, 2022, the

complainant requested a restraining order against the defendant,

who is her son. That same day, an ex parte hearing was held,

and a judge issued a ten-day restraining order. Relevant to

this appeal, the defendant was ordered to have no contact with

and stay at least fifty yards away from the complainant and to

stay away from the complainant's residence. The judge checked

off the box on the order requiring that the defendant

immediately leave and stay away from the "entire apartment

building or other multiple family dwelling in which the

[complainant]'s residence is located."

A two-party hearing was held on July 29, 2022. The

complainant told the judge that she and the defendant lived in

the same house and that the defendant resided on the first floor

while she resided on the second floor.2 The defendant further

1 Because we conclude the evidence was insufficient, we need
not address these arguments.

2 On appeal, the defendant filed a motion to expand the
record to include the hearing transcripts from both the ex parte
and two-party hearings. The Commonwealth does not object to the
expansion of the record, effectively rendering the defendant's

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explained that the residence was a two-family home and the units

were separate. The defendant also told the judge that, due to

the restraining order, he had been unhoused for the past nine

days, at times sleeping on benches. After hearing from both

sides, the judge extended the restraining order for six months

with the following written modifications: "#3 modified [the

defendant] may live in 1st floor unit + must stay Away + have no

contact [with the plaintiff] -- 5 ft away when living in unit.

Outside of unit must be 50 ft Away. [2 family residence]." The

judge also amended paragraph 2 (the no contact provision) to

read "[Text], phone, etc. -- still in effect[.]" The judge

explained to both of the parties that he was modifying "number

three, which is to stay away from 617 [the complainant's

residence]. The modification will be that [the defendant] lives

in a separate unit so he may be in his first floor unit, but

remain away from you at least five feet at all times unless

there's incidental [contact]." The judge warned the defendant

that "if you need to go to the back door to avoid [the

complainant] at the front door, I would suggest you do it. In

all other places in the public, you have to remain the 50 feet

appeal of the order denying his postconviction motion to expand
the record moot.

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away."3 While the judge made clear to the defendant that he was

to have no contact with and stay away from the complainant, he

told the complainant "[b]ut I'm not going to kick [the

defendant] out of a residence separate from yours, but he -- he

will be ordered not to speak to you, contact you in any way.

And if he sees you, he needs to move away. That -- I think

that's a fair order."

In August of 2022, the complainant's residence was equipped

with surveillance cameras. On April 12, 2023, the defendant was

charged with one count of violating the 209A order. The facts

were undisputed. In December of 2022, the plaintiff reviewed

surveillance camera footage which showed that, on November 26,

2022, the defendant walked up the stairs of the two-family home

and passed within five feet of the back door of the

complainant's residence. At trial, the complainant testified

that she had reviewed the surveillance footage approximately one

month after the defendant passed by her home and reported this

activity to the police. The complainant did not testify that

3 The judge also reiterated to the defendant that paragraph
two of the restraining order, the no contact provision, meant
that the defendant was to have no contact with the complainant,
"which means [that] you may not call upstairs, you may not text
her, you may not speak to her, you may not ask your father to
speak to her on your behalf, you may not ask your sister to
speak to her on your behalf."

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she was in her residence at that time or that the defendant was

within five feet of her.

Discussion. Sufficiency of the evidence. "In reviewing

the sufficiency of the evidence, we consider '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. Watson, 94 Mass. App. Ct. 244, 247 (2018),

quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To

establish that the defendant violated a restraining order issued

pursuant to G. L. c. 209A, § 7, the Commonwealth must establish,

by proof beyond a reasonable doubt, that (1) there was a valid

restraining order; (2) the defendant knew of the order; and

(3) the defendant violated the order. See Commonwealth v.

Silva, 431 Mass. 401, 403 (2000). The defendant does not

challenge the first two elements. Rather, he argues that the

evidence was insufficient to sustain a conviction for a

violation of the abuse prevention order because the terms and

conditions of the order did not prohibit the defendant's

conduct.

We agree with the defendant that the evidence was

insufficient to establish that he violated the terms and

conditions of the order. The modification of the order required

that the defendant remain five feet away from the complainant

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when he was inside the residence and fifty feet away from the

complainant when in all other public places. Given the specific

language of the modification order, which was underscored by the

judge at the two-party hearing, we are not persuaded by the

Commonwealth's contention that the order prohibited the

defendant from being within five feet of the complainant's

residence. Neither the initial order nor the modified order

contained any language requiring the defendant to stay a

particular distance away from the complainant's residence.

Further, at the two-party hearing, the judge (both orally and in

writing) clearly expressed to the defendant that he was to stay

five feet away from the complainant while inside the residence

and fifty feet away when outside of the residence.4

Conclusion. The judgment finding a violation of a G. L.

c. 209A, § 7 order is reversed, the verdict is set aside, and

4 At oral argument, the Commonwealth conceded that if the
court interpreted the 209A order to prohibit the defendant from
staying five feet away from the complainant (rather than, as the
Commonwealth suggested, five feet from her residence), that
there was insufficient evidence to establish a violation.

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judgment shall enter for the defendant. The order denying the

defendant's renewed motion to set aside the verdict is reversed.

So ordered.

By the Court (Meade, Walsh &
Hodgens, JJ.5),

Clerk

Entered: September 25, 2025.

5 The panelists are listed in order of seniority.

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