COMMONWEALTH v. LAO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from an order revoking his probation and imposing sentences to a house of correction ² on the ground that he had violated his probation by committing three new offenses and by failing to comply with the condition of his probation that he have no contact with his ex-wife. We vacate portions of the order and remand the matter for resentencing.

Background. On March 30, 2016, the defendant pleaded guilty to offenses charged in three separate complaints. The first complaint alleged the defendant operated a motor vehicle while under the influence of intoxicating liquor, in violation of G. L. c. 90, § 24 (1) (a) (1), on July 27, 2015. The second and third complaints alleged violations of an abuse prevention order, in violation of G. L. c. 209A (c. 209A), on November 25, 2015, and February 19, 2016, respectively. The defendant was sentenced to two years of probation on each charge, with all sentences to run concurrently. One of the conditions of the defendant's probation was that he have no contact with and stay away from his ex-wife, who was the victim in both of the c. 209A offenses.

About one week later, on April 8, 2016, the defendant was served with a notice of surrender and hearing for alleged violations of probation. The notice referred to three new criminal offenses: witness intimidation, in violation of G. L. c. 268, § 13B; violation of an abuse prevention order, in violation of c. 209A, § 7; and threatening to commit a crime, in violation of G. L. c. 275, § 2.³ A revocation hearing was held on May 6, 2016, at which Chelsea Police Officer Anthony Morales and Probation Officer Judy Lawlor testified. We summarize the Commonwealth's evidence as follows.⁴

On April 8, 2016, Officer Morales spoke with Dr. Anselmo Rayce, the defendant's doctor. Dr. Rayce reported that he had been contacted by the defendant's aunt, identified as “Anbly,” who told him that she had received disturbing text messages from the defendant about his ex-wife. The messages indicated, among other things, that the defendant sought revenge against his ex-wife. Upon receiving this information, Dr. Rayce had the defendant transported to the hospital pursuant to G. L. c. 123, § 12. Dr. Rayce told Officer Morales that the defendant is a psychopath who is capable of following through with his statements.

Probation Officer Lawlor met with the defendant's aunt and copied the text messages that she had received from the defendant. The messages were sent on April 5, 2016, and were admitted in evidence over the defendant's objection. In pertinent part, the messages read as follows:

The defendant: “I know I told you that I was going to leave it in God's hands but she has to pay for what she's done to me she don't want to talk to me she don't answer the phone I know she's not supposed to talk to me but that's bull s***”

The defendant: “She's going to pay”

Anbly: “It's not bull she has a restricted order on you ․”

The defendant: “Restraining order doesn't mean anything to me if they don't get there on time”

Anbly: “Will you stop man you don't need her all you have to care for if [sic] your daughter”

The defendant: “It's not about her it's about revenge”

Anbly: “If you want revenge remember that is going to hurt your daughter ․”

The defendant: “Who says I am going to jail ․ not this time ․ the devil made me do it”

At the conclusion of the hearing, the judge found that the defendant had violated his probation by committing the three new offenses ⁵ and by failing to comply with the terms of his probation by contacting his ex-wife. In reaching his conclusion, the judge implicitly rejected the defendant's arguments that the text messages themselves did not constitute any crime and that there was no evidence showing that the defendant intended for Anbly to convey the substance of the messages to his ex-wife.

Discussion. The defendant contends that the revocation order must be set aside because it rests on unsupported criminal allegations and unreliable hearsay. We address these arguments in turn.

1. Alleged new offenses. The defendant's primary argument is that the new charges are not supported by competent evidence. In support of his claim he points to the fact that he subsequently was acquitted of the charges. However, “[the] standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence rather than the criminal standard of beyond a reasonable doubt.” Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001).

We begin with the allegation that the defendant violated the c. 209A abuse prevention order. To obtain a conviction under c. 209A, § 7, the Commonwealth must show (1) there was an abuse prevention order in effect on the date of the alleged violation; (2) the defendant had knowledge of the order; and (3) the defendant violated the terms of the order. Commonwealth v. Collier, 427 Mass. 385, 388 (1998). It is undisputed that an abuse prevention order was in effect and the defendant was aware of it. In addition, the judge reasonably could infer from the content of the text messages that the defendant had attempted to contact his ex-wife by calling her on the telephone. The fact that he was unsuccessful is inconsequential. See Commonwealth v. Russell, 46 Mass. App. Ct. 307, 310-311 (1999) (defendant violated order directly or through another when intermediary attempted to call wife, who did not accept calls).

With regard to the offense of threatening to commit a crime, the Commonwealth must prove that the defendant expressed an “intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat.” Commonwealth v. Troy T., 54 Mass. App. Ct. 520, 524 (2002), quoting Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). Also, where, as here, the threat is communicated to an intermediary, the Commonwealth must prove by a preponderance of the evidence that the defendant intended for the threat to be communicated through the intermediary. Troy T., supra at 526.

The evidence presented at the hearing showed that just six days after pleading guilty to violating the abuse prevention order on two occasions, the defendant sent a text message stating that his ex-wife “was going to pay,” that it was about “revenge,” and that the “restraining order doesn't mean anything if” the police, presumably, “don't get there fast enough.” These statements are sufficient to show by a preponderance of the evidence that the defendant intended to inflict a crime on his ex-wife. See Commonwealth v. Meier, 56 Mass. App. Ct. 278, 280 (2002) (“we eschew a technical parsing of the words used and instead consider the entire context in which a statement is made, including the defendant's actions and demeanor at the time, and prior communications between the defendant and the recipient” [citation omitted] ). Moreover, because the defendant's aunt believed the statements were disturbing, so much so that she contacted the defendant's doctor, it was reasonable for the judge to conclude that she would communicate the threats to the intended recipient, namely the ex-wife. Lastly, as Dr. Rayce stated, the defendant “is capable of following through” with these threats. Thus, it certainly was more likely than not that the defendant's statements would justify apprehension on the part of his ex-wife.

Finally, with regard to the allegation that the defendant intimidated a witness, we agree that the evidence was insufficient to find a violation of probation on the ground that the defendant had committed this offense. The statute, G. L. c. 268, § 13B, as in effect at the time of the hearing, see St. 2006, c. 48, § 3,⁶ required the Commonwealth to “prove that (1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding” (footnote omitted). Commonwealth v. Fragata, 480 Mass. 121, 126-127 (2018). “Intimidation requires ‘putting a person in fear for the purpose of influencing his or her conduct.’ ” Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 100 (2015), quoting Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998). The Commonwealth claims that the evidence was sufficient because the judge could have inferred that the defendant threatened his ex-wife, through his aunt, with the intent to discourage her from reporting his violation of the abuse prevention order to the police. However, the defendant's text messages expressly indicate his intent to get “revenge” on his ex-wife “for what she [had] done to [him],” not to keep her from reporting any of the defendant's conduct to the police. This cannot support a charge of witness intimidation. Compare Commonwealth v. Rosario, 83 Mass. App. Ct. 640, 643-644 (2013) (evidence sufficient to support jury conclusion that defendant intended both retaliation and intimidation). No evidence was introduced from which the judge could infer that the defendant's ex-wife expressed a desire to report the defendant's actions to the police or probation department. Furthermore, nothing in the defendant's text messages indicates that the defendant had the alternative or additional intent of harming his ex-wife to prevent her from reporting his actions.

2. Hearsay evidence. The defendant claims that the revocation order rests on Dr. Rayce's unreliable hearsay statement to Officer Morales that the defendant is a psychopath. There is no merit to the argument. As the defendant acknowledges, a judge is entitled to consider hearsay evidence in determining whether to revoke probation as long as that hearsay has “substantial indicia of reliability.” Commonwealth v. Durling, 407 Mass. 108, 118 (1990). Here, it does.

Dr. Rayce was providing medical treatment to the defendant at the time he told Officer Morales that the defendant was a psychopath. It can reasonably be inferred from the ongoing doctor-patient relationship that Dr. Rayce had personal knowledge and made direct observations of the defendant's mental state. The defendant's text message conversation with his aunt occurred on April 5, 2016, and within three days, Dr. Rayce initiated proceedings to commit the defendant for further medical evaluation. Doctor Rayce then alerted the ex-wife and the police of the situation. Given these circumstances we are confident that the hearsay in question was reliable and served as a proper basis for revoking the defendant's probation.

Conclusion. So much of the order revoking probation that finds the defendant violated his probation by committing the new offense of witness intimidation is vacated. We also vacate the portion of the order finding that the defendant violated the no-contact term of his probation. See note 2, supra. In all other respects the order is affirmed. The sentence is vacated and the matter is remanded for resentencing in accordance with this memorandum and order. See Commonwealth v. Arroyo, 451 Mass. 1010, 1011-1012 (2008). We express no opinion as to whether a different sentence should be imposed.

So ordered.

Affirmed in part; vacated in part and remanded.

FOOTNOTES

2.   Specifically, the judge imposed two concurrent two and one-half year sentences and an additional sentence of two and one-half years, to be served from and after the earlier sentences -- effectively a five-year sentence.

3.   Based on our review of the record, the notice did not specify that the defendant had violated the terms of his probation by contacting his ex-wife. For that reason, the judge's finding that the defendant violated the terms of his probation by contacting his ex-wife in violation of the probation no contact order was in error -- even though the same behavior properly supported the finding that the defendant violated the terms of his probation with his violation of the outstanding c. 209A order.

4.   The facts are taken from a record that was reconstructed by agreement and approved, “for purposes of appeal,” by the judge who presided over the hearing.

5.   The defendant subsequently was found not guilty of the charges.

6.   The statute was substantially reorganized and rewritten in 2018. See St. 2018, c. 69, § 155. This amendment has no bearing on our case. See Commonwealth v. Fragata, 480 Mass. 121, 122 n.2 (2018).