Commonwealth v. Sabin

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23-P-484 Appeals Court

COMMONWEALTH vs. ROBERT A. SABIN.

No. 23-P-484.

Plymouth. January 11, 2024. - June 20, 2024.

Present: Rubin, Ditkoff, & Grant, JJ.

Parental Kidnapping. Practice, Criminal, Required finding.
Statute, Construction. Time. Evidence, Court record,
Relevancy and materiality. Judgment. Words, "Protracted
period."

Complaint received and sworn to in the Plymouth Division of
the District Court Department on February 11, 2021.

The case was tried before James M. Sullivan, J.

Christopher DeMayo for the defendant.
Johanna Black, Assistant District Attorney, for the
Commonwealth.

DITKOFF, J. The defendant, Robert A. Sabin, appeals from

his conviction, after a District Court jury trial, of parental

kidnapping, G. L. c. 265, § 26A. The defendant kept his five

year old child after his weekend of parenting time, intending to

take the child on vacation to an amusement park in New Jersey
2

for six days. Concluding that the jury could find that six days

was a protracted period of time under the circumstances here,

and that the admission of an uncertified Probate and Family

Court judgment, if error, did not prejudice the defendant, we

affirm.1

1. Background. The mother and the defendant shared legal

custody of their five year old son pursuant to a judgment from a

Probate and Family Court judge, following a trial in that court.

The judgment gave the mother sole physical custody of the child,

except that the defendant was allowed parenting time every other

weekend from Friday at 5 P.M. until Sundays at 6 P.M., as well

as two hours each Wednesday evening. The mother would

occasionally pick the child up at 8 P.M. on Sunday when the

defendant had not exercised his two-hour parenting time on the

preceding Wednesday.

The defendant wanted to take the child on a six-day

vacation to an amusement park in New Jersey. Thrice, the

defendant texted the mother about his planned vacation. On

November 26, 2019, he wrote, "July 26 2020 to aug 1st 2020 ill

be taking [the child] on vacation." On January 3, 2020, he

wrote, "Think i told you but i got the approval. 7/26-8/1 2020.

1 As we discuss infra, the parental kidnapping statute,
G. L. c. 265, § 26A, punishes not only a person who unlawfully
"holds" a child for a protracted period of time, but also one
who "intends to hold" a child for a protracted period of time.
3

Taking [the child] on vacation." And on June 30, 2020, he

wrote, "Just 3rd heads up 7-26 to 8-1 taking [the child] on

vaca," to which the mother replied in part, "You don't have a

week vacation to take him in our court order and I'm not

agreeing to that. I don't know why you think you can just

decide something against our order and do what you . . . ."2

Around 2 P.M. on Sunday, July 26, 2020, the mother texted

the defendant about picking the child up that evening, and the

defendant told her that "he was not going to be giving [the

child] back to [her], that he planned on taking [the child] out

of state to go on vacation." She told the defendant that she

"was not in agreeance to that."

When she went to pick up the child that evening, neither

the child nor the defendant was there. She tried to call the

defendant multiple times, but he did not answer. She contacted

the police.

Initially, the police were unable to reach the defendant,

so an officer left a voice mail message. Later that night, the

defendant called the officer back. The officer explained that

he had called to "check the wellbeing of the child" because

there appeared to be "a probate order in effect" saying that the

child "was supposed to be in [the mother's] custody at that

2 The remainder of the mother's text message is not visible
in the screenshot of the message that was admitted at trial.
4

point." The defendant told the officer that "he knew he was in

violation of the order, but that it was something he would deal

with -- the contempt of which he would deal with at another

time." At this point, the defendant was in Connecticut, about

three hours from New Jersey. The officer told the defendant

that the defendant "was likely committing a criminal offense,"

and "suggest[ed] that he return with the child." The defendant

told the officer that he would call back again.

The defendant called again and told the officer that he

would be returning with the child that evening. The defendant

returned with the child at approximately 1:05 A.M.

2. Sufficiency of the evidence. a. Standard of review.

Where, as here, a sufficiency of the evidence challenge is based

on statutory interpretation, we begin our review with

interpreting the statute at issue. "Our primary duty in

interpreting a statute is 'to effectuate the intent of the

Legislature in enacting it.'" Commonwealth v. Sousa, 88 Mass.

App. Ct. 47, 49 (2015), quoting Campatelli v. Chief Justice of

the Trial Court, 468 Mass. 455, 464 (2014). "The language of

the statute is the starting point for all questions of statutory

interpretation." Bank of N.Y. Mellon v. Morin, 96 Mass. App.

Ct. 503, 507 (2019), quoting Retirement Bd. of Stoneham v.

Contributory Retirement Appeal Bd., 476 Mass. 130, 135 (2016).

"If the language is 'clear and unambiguous, it is to be given
5

its "ordinary meaning."'" Commonwealth v. Mansur, 484 Mass.

172, 175 (2020), quoting Commonwealth v. Soto, 476 Mass. 436,

438 (2017). "We review questions of statutory interpretation de

novo." Wallace W. v. Commonwealth, 482 Mass. 789, 793 (2019),

quoting Millis Pub. Sch. v. M.P., 478 Mass. 767, 775 (2018).

After we discern the meaning of the underlying statute,

"[w]e consider the evidence introduced at trial in the light

most favorable to the Commonwealth, and determine whether a

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt." Commonwealth v.

Lagotic, 102 Mass. App. Ct. 405, 407 (2023), quoting

Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 216 (2019). "The

inferences that support a conviction 'need only be reasonable

and possible; [they] need not be necessary or inescapable.'"

Commonwealth v. Howe, 103 Mass. App. Ct. 354, 357 (2023),

quoting Commonwealth v. Wheeler, 102 Mass. App. Ct. 411, 413

(2023).

b. "Protracted period" of time. For ordinary kidnapping

under G. L. c. 265, § 26, no particular period of confinement is

necessary. Rather, "[a]ny restraint of a person's liberty is a

confinement or an imprisonment." Commonwealth v. Dykens, 438

Mass. 827, 841 (2003). For example, "the act of forcing the

victim into [an] alley, though admittedly brief, was nonetheless

sufficient" to support a kidnapping conviction. Commonwealth v.
6

Wilcox, 72 Mass. App. Ct. 344, 350 (2008). Accord Commonwealth

v. Lent, 46 Mass. App. Ct. 705, 706, 710 (1999) (defendant

controlled victim's movements for one block).

The parental kidnapping statute is different. That statute

applies to "a relative of a child less than eighteen years old,

[who,] without lawful authority, holds or intends to hold such a

child permanently or for a protracted period, or takes or

entices such a child from his lawful custodian." G. L. c. 265,

§ 26A.3 Thus, absent an intent to hold the child permanently or

for a protracted period of time, a brief restraint is

insufficient. The Commonwealth must prove either that the

defendant held the victim for a protracted period of time or

that the defendant intended to hold the victim for a protracted

period of time (or permanently).

Where, as here, the Commonwealth alleged that the defendant

intended to hold the victim for a protracted period of time, the

actual amount of time the victim was held is material only to

the extent that it illuminates the defendant's intent. In light

of the way the Commonwealth prosecuted this case, we do not

reach the question whether the length of time for which the

defendant actually held the child -- approximately seven hours,

3 In addition to protecting children, the statute also
protects an incompetent victim or "other person entrusted by
authority of law to the custody of another person or
institution." G. L. c. 265, § 26A.
7

from 6 P.M. until 1:05 A.M. -- would constitute a "protracted

period" within the meaning of § 26A. If the confinement is

interrupted by police involvement before a protracted period of

time has passed, which we may assume it was here, it is the

defendant's intent that controls.

Given this posture, the defendant challenges only whether

the six days he admittedly intended to hold the child could

constitute a "protracted period" of time. We conclude that it

may.

Whether a period of time is a "'protracted period' is

highly context-dependent." State v. Cline, 180 Wash. App. 644,

653 (2014). Accord Commonwealth v. Oberle, 476 Mass. 539, 540,

547, 549 (2017) (in domestic violence kidnapping case, "rational

juror could have concluded that . . . confinement was

protracted" such that it went beyond "confinement or restraint

. . . inherent in the underlying assaults and batteries" where

"it was dark when the entire incident began" and "light by the

time the victim escaped"). Our colleagues in other States with

parental kidnapping statutes similar to ours have articulated a

"protracted period" as "a lengthy or unusually long time under

the circumstances," Cline, supra; State v. Luckie, 120 N.M. 274,

279 (Ct. App. 1995), quoting People v. Obertance, 105 Misc. 2d

558, 559 (N.Y. Crim. Ct. 1980); or a "drawn out or prolonged

period of time," State v. Romero, 145 N.M. 594, 600 (Ct. App.
8

2008). See Regina C. v. Michael C., 440 P.3d 199, 207 (Alaska

2019) (distinguishing in dicta "short period of time" from

"protracted period" of time). Whether a period of time is

protracted may depend on, among other considerations, the age of

the child, see Cline, supra at 646 (weekend may be protracted

period for "a 14–month–old child"), any conditions on parenting

time, see People v. Sharp, 104 A.D.3d 1325, 1326 (N.Y. 2013)

(indictment upheld where parent who was permitted "only limited

supervised visitation" held child overnight), or the

circumstances under which the parent takes the child, see People

v. Garcia, 46 Misc. 3d 620, 627 (N.Y. Crim. Ct. 2014) ("The bare

allegation that [the noncustodial parent] picked the child up

from school does not sufficiently allege the intent to hold her

either 'permanently or for a protracted period'"). See also

Schofield v. State, 132 Nev. 303, 308–309 (2016) (interpreting

"intent to keep" element of first-degree kidnapping to mean

"keep . . . permanently or for a protracted period of time" and

discerning that trip to grocery store was insufficient).

Here, the jury could find that the six days that the

defendant intended to keep the child was a protracted period of

time. The child was only five years old, and the defendant was

supposed to have parenting time for only the weekend. Under

these circumstances, a reasonable jury could find that an extra

six days of vacation out of State was a protracted period of
9

time. See Sharp, 104 A.D.3d at 1326 (overnight); People v.

S.W., 81 Misc. 3d 299, 300-301 (N.Y. County Ct. 2022) (little

over one day); Cline, 180 Wash. App. at 646 (weekend). See also

State v. Munoz, 139 N.M. 106, 112-113 (2006) (two weeks); State

v. Dirks, 35 Or. App. 33, 37 (1978) (two months).

3. Authentication of uncertified court judgment.

Evidentiary "matters are 'entrusted to the trial judge's broad

discretion and are not disturbed absent palpable error.'"

Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 (2018), quoting

Commonwealth v. Keown, 478 Mass. 232, 242 (2017), cert. denied,

583 U.S. 1139 (2018). "The 'judge's discretionary decision

constitutes an abuse of discretion where we conclude the judge

made "a clear error of judgment in weighing" the factors

relevant to the decision, such that the decision falls outside

the range of reasonable alternatives.'" Commonwealth v.

Pimentel, 99 Mass. App. Ct. 597, 600 (2021), quoting

Commonwealth v. Butler, 87 Mass. App. Ct. 183, 187 (2015).

Because the defendant objected to the admission of the

uncertified Probate and Family Court judgment, we review for

"prejudicial error." Commonwealth v. Cruz, 445 Mass. 589, 591

(2005). "An error is not prejudicial if it did not influence

the jury, or had but very slight effect." Commonwealth v.

White, 103 Mass. App. Ct. 655, 659 (2024), quoting Commonwealth

v. Souza, 492 Mass. 615, 627 (2023).
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Here, we need not decide whether it was proper to admit the

Probate and Family Court judgment -- which was uncertified but

the mother testified was authentic -- because its admission did

not prejudice the defendant. The mother testified that the

operative Probate and Family Court judgment allowed the

defendant parenting time every other weekend from Friday at

5 P.M. until Sunday at 6 P.M. Far from contesting this, the

defendant confirmed it, telling the police officer that "he knew

he was in violation of the order." Accordingly, the judgment

itself was cumulative evidence of its uncontested existence and

relevant terms, and its admission was nonprejudicial. See

Commonwealth v. Caruso, 476 Mass. 275, 291 (2017) (no prejudice

where erroneously admitted screenshots were cumulative of other

properly admitted evidence).

Judgment affirmed.