COMMONWEALTH v. Philip A. WILLOUGHBY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, the defendant was convicted of violating a G. L. c. 209A abuse prevention order (209A order). At issue on appeal is whether the evidence was sufficient to prove beyond a reasonable doubt that the defendant contacted the victim in violation of the 209A order. We conclude that it was and therefore affirm.
Background. The judge could have found the following facts. The victim obtained the 209A order in February 2017, after dating the defendant for around five years. The 209A order required the defendant to stay away from the victim and prohibited him from contacting her. On February 4, 2019, the victim obtained an extension of the 209A order following a Probate Court hearing at which the defendant was present. During the extension hearing, the victim stated that she had recently moved and that her new address “was impounded by the address confidentiality program.” This was the first time that the victim told the defendant about her involvement in the program.
Five days after the extension hearing, the victim went to her front door to retrieve a package and found a handwritten note between the outer glass door and inner wooden door. The note read, “You can't hide.” The victim had last used the front door the day before the extension hearing, which she recalled specifically because the Super Bowl was on that day and she had a pizza delivered. Had the note been there at the time, the victim would have noticed because she would have stepped on it when she stood in the doorway to get the pizza. The victim was familiar with the defendant's handwriting, as she had seen it numerous times, and she believed that the handwriting on the note was similar.2 Furthermore, neither the victim nor her husband were concealing their address from anyone other than the defendant.
Discussion. To sustain a conviction under G. L. c. 209A, § 7, the Commonwealth has the burden of proving, among other elements, that “the defendant violated the [209A] order.” Commonwealth v. Silva, 431 Mass. 401, 403 (2000). The defendant contends that the Commonwealth failed to meet this burden because it presented insufficient evidence that he was responsible for the note, which was the sole basis for finding him in violation of the 209A order.3
Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Ayala, 481 Mass. 46, 51 (2018), we conclude that the judge, as trier of fact, could have found beyond a reasonable doubt that the defendant violated the 209A order. The evidence permitted a finding that the note was left in the victim's doorway at some point during the five days following the extension hearing. The judge could also have inferred that the message, “You can't hide,” referred to the victim's participation in the address confidentiality program, which she revealed to the defendant for the first time at the hearing. Given the timing and the content of the note, and the surrounding circumstances, the judge did not have to “resort to speculation or irrational thinking to find the defendant responsible.” Commonwealth v. Russell, 46 Mass. App. Ct. 307, 310 (1999). More than establishing just motive to commit the crime, the circumstantial evidence, and the common-sense inferences therefrom, pointed to the defendant as the perpetrator. See id. at 311 (based on common-sense inferences from evidence, jury could have found that defendant called wife in violation of 209A order and that it was not equally plausible that some unknown third person did so “for no apparent reason and coincidentally on the heels of the defendant's learning of the [209A] order”).
We are unpersuaded by the defendant's contention that the conviction cannot be sustained absent evidence that he actually wrote and delivered the note. Putting aside the victim's testimony that the handwriting on the note was similar to the defendant's, this was not part of the Commonwealth's burden of proof. Rather, the Commonwealth needed only to prove that the defendant violated the 209A order by contacting the victim, see Silva, 431 Mass. at 403, regardless whether he wrote and delivered the note himself or enlisted someone to do so. See Russell, 46 Mass. App. Ct. at 310 (evidence sufficient to show that defendant violated 209A order by contacting wife “directly or through another”).4 Nor was the Commonwealth required to prove precisely how (or even that) the defendant obtained the victim's address, to the extent he so argues.5 Questions about how the defendant would have accomplished his objective go to the weight of the evidence, not its sufficiency.
The Commonwealth's evidence did not deteriorate after it rested its case. Although the defendant testified that he did not write the note or direct anyone to leave it at the victim's home, the judge was free to disbelieve his testimony. See Commonwealth v. Nhut Huynh, 452 Mass. 481, 485-486 (2008). Finally, the defendant's remaining arguments fail because they do not take the evidence in the light most favorable to the Commonwealth, as required when challenging sufficiency. See Ayala, 481 Mass. at 51.
2. An exemplar of the defendant's handwriting was entered in evidence for comparison.
3. The defendant does not challenge the sufficiency of the evidence as to the other elements of the offense.
4. Relatedly, the defendant argues that the judge was required to make a preliminary determination regarding the genuineness of the handwriting before admitting the note. We disagree, if for no other reason that the judge was sitting without a jury. See Commonwealth v. Batista, 53 Mass. App. Ct. 642, 648 (2002).
5. Had the defendant enlisted someone else to deliver the note, he would not have needed to know the victim's address if his confederate did.
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