COMMONWEALTH v. BOURQUE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant of violating an abuse prevention order following a one-day trial at which three witnesses testified: the victim; an investigating police officer; and the defendant. On appeal from his conviction, the defendant claims error in the denial of his motion to set aside the verdict pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). We affirm.

Background. In September 2015, the victim obtained an abuse prevention order under G. L. c. 209A which required the defendant to stay twenty-five yards away from her and the residence she shared with their children. The defendant was also ordered to stay away from the children's schools. At that time, one child was in elementary school while the other was in high school. Finally, the abuse prevention order stated that custody exchanges of the children must take place at a specified police department.

On October 2, 2015, after a hearing at which both parties were present, the abuse prevention order was modified to allow the defendant to be at the schools and to contact the victim in order to discuss the children. The contact could only be by phone, text, or e-mail, and the defendant was prohibited from using “abusive or derogatory language.”

The victim testified that, three days later on October 5, she was parked at the high school to pick up one of the children when the defendant pulled up alongside her car, rolled down his passenger's side window, and yelled at her “to stop being a selfish bitch and a stupid cunt.” After this exchange, the victim went to the police department to report the defendant's violation of the order. The defendant proceeded to the elementary school to pick up the other child. At an officer's direction, the victim texted the defendant to remind him that their exchange of that child needed to take place at the police department. Instead, the defendant dropped the child off at the victim's residence. On October 14, 2015, a criminal complaint issued charging the defendant with two counts of violating an abuse prevention order. One count was based on the defendant's in-person abusive or derogatory contact with the victim on October 5. The other was based on his coming within twenty-five yards of the victim's residence when he dropped off the younger child.

The defendant testified in his own defense and acknowledged speaking to the victim in person on October 5. However, he denied using the abusive and derogatory language the victim attributed to him, or that he came within twenty-five yards of her residence. The jury returned a split verdict, convicting the defendant of violating the order by his contact with the victim on October 5, and acquitting him of violating the order by coming within twenty-five yards of her residence. The judge denied the defendant's motion to set aside the verdict and for a required finding of not guilty on that charge.

Standard of review. A guilty verdict may be set aside if the judge concludes that “the evidence is insufficient as a matter of law to sustain a conviction on the charge.” Mass. R. Crim. P. 25 (a), as amended, 420 Mass. 1502 (1995). In making that analysis, the judge does not consider “the weight or integrity of the evidence.” Commonwealth v. Doucette, 408 Mass. 454, 456 (1990). Rather, the question is “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. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

We review the denial of a rule 25 motion to set aside a verdict for an abuse of discretion, see Doucette, 408 Mass. at 456, which we will not find unless we conclude that 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. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Discussion. The jury were required in this case to decide who was accurately recalling the events of October 5. The victim testified that the defendant yelled at her “to stop being a selfish bitch and a stupid cunt.” The defendant argues on appeal that her testimony was not credible. However, whether to believe the victim was “for the jury to decide, not the judge.” Commonwealth v. Torres, 24 Mass. App. Ct. 317, 322 (1987). The jury were entitled to believe the victim's testimony about the defendant's abusive language. See Commonwealth v. Zanetti, 454 Mass. 449, 457 (2009) (“Jurors, of course, are free to believe or disbelieve the testimony of each witness in whole or in part”). The motion to set aside the jury's verdict was properly denied. See Torres, supra at 323 (reversing allowance of rule 25 motion because “it was not permissible for the trial judge to engage in weighing the evidence or assessing witness credibility”).

Judgment affirmed.