COMMONWEALTH v. ITALO BONN SANTOS DE SOUZA (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2022 and 2023, two separate complaints issued in the District Court against the defendant; each complaint alleged a single violation of an abuse prevention order (order) obtained by the defendant's wife (wife). Prior to trial, the defendant moved unsuccessfully to dismiss the 2023 complaint, see Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002), and the two cases were later joined. At the ensuing jury trial, the judge allowed the defendant's motion for a required finding of not guilty as to the charge in the 2023 complaint. The jury ultimately convicted the defendant on the charge in the 2022 complaint, and the defendant appealed from his conviction. We affirm.

Discussion. 1. Denial of defendant's request for jury instruction on incidental contact. As relevant to the 2022 complaint, the Commonwealth introduced evidence at trial to show that on July 23, 2022, (1) the wife obtained the order against the defendant, which prohibited him from, inter alia, contacting her “either directly or through someone else”; (2) the order was served on the defendant; and (3) the defendant sent a message to the wife's mother asking her to “tell [the wife] I just need the car to go to work.”¹ The jury could have inferred that the defendant was served with the order before he sent the message to the wife's mother.²

The defendant requested that the judge instruct the jury that

“[i]f there is evidence that suggests that the alleged contact may have been incidental to a legitimate, lawful activity such as arranging for transportation to go to work, then the Commonwealth must prove beyond a reasonable doubt that the alleged violation was not incidental to that permitted activity.”3

The judge declined to give that instruction.

There was no error in the judge's ruling. Although the defendant's attempt to contact the wife was arguably in furtherance of the legitimate, lawful activity of going to work (or obtaining transportation to go to work), this case is unlike Commonwealth v. Leger, 52 Mass. App. Ct. 232 (2001), in that the evidence did not support a finding that the prohibited contact was necessary to the defendant's ability to engage in that lawful activity. Cf. id. at 237, quoting Commonwealth v. Silva, 431 Mass. 194, 198 (2000) (“A no-contact order ․ would not be violated when a father has to speak on the telephone with a protected [person], in order to speak with his children” where there is no prohibition on contact with children [emphasis added]). There was no evidence to show that the defendant could not have arranged for transportation to work without contacting the wife -- for example, by seeking permission to use the car from its registered owner (the wife's father) or by finding an altogether different way to get there. Cf. Leger, supra, quoting Silva, supra (incidental contact instruction was warranted where jury could have found that there was “no other way for [defendant] to exercise his right to reach his children” outside of speaking briefly with wife when she answered telephone). Because the defendant was not entitled to the requested instruction on “incidental contact,”⁴ the judge did not err by declining to give the defendant's proposed instruction.⁵ See Commonwealth v. McGee, 467 Mass. 141, 154 (2014) (“A trial judge ‘is not required to grant a particular instruction so long as the charge, as a whole, adequately covers the issue’ ” [citation omitted]).

2. Denial of defendant's pretrial motion to dismiss 2023 complaint. Because the trial judge allowed the defendant's motion for a required finding of not guilty as to the charge in the 2023 complaint, the defendant's challenge to the correctness of the order denying his pretrial motion to dismiss that complaint for lack of probable cause is moot. Cf. Mushwaalakbar v. Commonwealth, 487 Mass. 627, 629 (2021) (defendant's challenge to propriety of pretrial detention rendered moot by his acquittal on all charges in case on which he was detained). Accordingly, insofar as the defendant challenges the correctness of the ruling on the motion to dismiss for its own sake, we need not and do not reach the defendant's challenge.

3. Other evidentiary challenges. We are not persuaded that the defendant's acquittal on the 2023 complaint had the effect of transforming all evidence of the conduct underpinning that charge -- the defendant's alleged cancellation of the wife's cell phone service -- into inadmissible “bad acts” evidence. The defendant has not provided any precedent to support this theory, and we are aware of none.

The evidence at issue is the wife's testimony about the defendant's failure to maintain her cell phone service. The testimony was admitted as part of the Commonwealth's case-in-chief; at the time of its admission, it was not evidence of uncharged conduct being used to prove the defendant's character or propensity to commit the crime charged -- to the contrary, it was the evidence on which the 2023 complaint was based. See Mass. G. Evid. § 404(b)(2) (2026). See also Commonwealth v. Lowery, 487 Mass. 851, 867 (2021) (prior bad act evidence related to, but distinguished from, “crime charged” [citation omitted]). The fact that the defendant was acquitted of the charge to which the evidence related did not render the evidence retroactively inadmissible.

Even if the evidence of the defendant's failure to maintain the wife's cell phone service should not have been admitted (a conclusion we do not reach), we are not persuaded that it prejudiced the defendant. See Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010), quoting Commonwealth v. Simpson, 434 Mass. 570, 578–579 (2001) (“Whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error”). The defendant's contention that the evidence concerning his failure to pay the cell phone bill improperly suggested that the defendant “did not provide support to his family”⁶ strains credulity. Although the wife testified that at the time the defendant stopped paying her cell phone bill the plan covered “[t]wo cell phones and [her] daughter's tablet,” we think it unlikely that the jury would have inferred from this that the defendant was “an irresponsible, non-supportive father.” Similarly, we think it unlikely that the wife's testimony about how the loss of cell phone service affected her would have caused the jury to view the defendant with a jaundiced eye. The testimony most likely to garner sympathy for the wife -- a reference to her need for the cell phone as she planned for her brother's funeral -- was stricken from the record at the defendant's request, and the jury were instructed not to consider it. “Because ‘[w]e presume that the jury follow the judge's instructions,’ including instructions to disregard testimony, there is no reason to believe that the defendant was unduly prejudiced.” Commonwealth v. Dufresne, 489 Mass. 195, 208 (2022), quoting Commonwealth v. Cortez, 438 Mass. 123, 130 (2002). The other challenged evidence -- the wife's testimony about the potential professional consequences of the lack of cell phone service ⁷ -- was also unlikely to have garnered sympathy for the wife because the judge disposed of the relevant charge. After the judge allowed the defendant's motion for a required finding of not guilty on the charge in the 2023 complaint, she promptly informed the jury that she had withdrawn the alleged “violation of a 209A order regarding the cellular telephone bill” from their consideration and explicitly directed them “to deliberate ․ only concerning the remaining charge ․ namely, the violation of a 209A order through a ․ message to a third party.” See Dufresne, supra. We presume that the jury followed those instructions. See id.

Judgment affirmed.

FOOTNOTES

1.   There was evidence that at the time the order issued, the wife and the defendant had possession of a car registered to the wife's father and that the defendant routinely used that car.

2.   The defendant testified at the trial and confirmed that he had sent the message to the wife's mother. He explained that he did so “[b]ecause [he] knew [he] couldn't talk to [the wife] anymore” after the order issued. The jury also viewed a screenshot of the text message the defendant sent to the wife's mother.

3.   Contrary to the defendant's argument on appeal, the instruction the defendant requested was not a “supplemental model instruction.” The model instruction on incidental contact provides, as an example, that contact incidental to “going to work” could be noncriminal incidental contact; it does not provide for a defendant “arranging for transportation to go to work.” See Instruction 6.720, Supplemental Instruction 3, of the Criminal Model Jury Instructions for Use in the District Court (2019).

4.   Whether the defendant understood that the no-contact provision of the order prohibited him from communicating with the wife indirectly presents a different question. The defendant testified that the police did not explain the no-contact provision of the order to him and that he understood only that he was not permitted to contact the wife directly. The jury were properly instructed on the Commonwealth's burden to prove the elements of the charged offense, including “that the defendant knew that the pertinent term of the order was in effect” at the time of the violation. We infer that the jury did not credit the defendant's testimony about his awareness and understanding of the order's prohibition on indirect contact with the wife.

5.   Because we discern no error in the judge's ruling, we need not and do not reach the defendant's claim that he was prejudiced by the lack of the requested instruction.

6.   Although the wife testified that, after the order issued and the defendant had vacated the apartment in which they were living, the defendant “sent no money for rent” and she became solely responsible for the household bills, this evidence was elicited by the defendant on cross-examination. The prosecutor's closing argument did not make any reference to the defendant's support or lack of support of the child he shares with the wife.

7.   The wife testified that she was a union steward at a building job site and that without cell phone service, “[i]f an accident happened, [she] wouldn't be able to communicate with the foreman or anyone else on the jobsite.” She did not testify whether or how that would negatively affect the ability of others to respond to a job site accident, and more to the point, there was no evidence at trial that the wife was prevented from responding to any actual job site accident by the defendant's alleged failure to maintain her cell phone service. We consider it unlikely that this testimony would have prejudiced the jury against the defendant.