COMMONWEALTH v. RAYMOND HORSLEY (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Raymond C. Horsley, appeals from an order of a District Court judge finding that he violated his probation by committing a new criminal offense. Because the defendant's subsequent guilty plea to that offense rendered his challenges to the judge's finding moot, we affirm.

Following a jury trial in the District Court in 2023, the defendant was convicted of violating an abuse prevention order, G. L. c. 209A, § 7. The trial judge sentenced him to two and one-half years in the house of correction, one year to be served, with the balance suspended for two years. His conditions of probation included the standard condition that he obey all local, State, and Federal laws.

Thereafter, the defendant attended a court hearing in a separate action in which he sought to recover possessions from the woman who obtained the abuse prevention order against him (victim). At that hearing, the defendant made several angry and threatening statements to the victim, including, “You fat, fucking, ugly bitch” and, “You know you're going to get yours.” The next day, a notice of probation violation issued, charging the defendant with having committed three criminal offenses: violation of the abuse prevention order; witness intimidation, G. L. c. 268, § 13B; and threatening to commit a crime, G. L. c. 275, § 2. The defendant was separately arraigned on the same three charges. After a hearing on March 11, 2025, a second District Court judge (hearing judge) found that the defendant violated his probation by committing the offense of threatening to commit a crime and sentenced him to serve the balance of his sentence, eighteen months. On April 10, 2025, the defendant pleaded guilty to the offenses of threatening to commit a crime and violating the abuse prevention order; the witness intimidation charge was dismissed.

Appealing from the order on his violation of probation, the defendant contends that (1) his statements at the court hearing in the separate action were protected by the litigation privilege, and (2) there was insufficient evidence to prove by a preponderance of the evidence that the defendant violated his probation. See Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 29 (2020). Because the defendant has been adjudicated guilty on the underlying crime, however, his challenge to the finding of probation violation is moot. “[A] conviction or guilty plea to a subsequent crime renders moot an appellate claim that a judge erred in making the factual determination that a probationer violated the terms of his probation.” Commonwealth v. Milot, 462 Mass. 197, 201 (2012).

It is true, as the defendant points out, that a subsequent conviction or guilty plea does not render moot an argument that “some aspect of the proceeding,” such as the denial of a probationer's right to counsel, “violated the probationer's constitutional rights, potentially impacting the second phase of the judge's probation determination, that pertaining to the disposition of the matter.” Commonwealth v. Pena, 462 Mass. 183, 188 (2012). See Milot, 462 Mass. at 201-202. Here, the defendant does not maintain that any procedural aspect of the March 11, 2025 hearing violated his constitutional rights. Rather, he claims that the judge erred in finding a violation during the adjudication phase by not applying the litigation privilege and by finding that he committed the threatening offense. The defendant's subsequent guilty plea to that offense thus mooted the issues he raises now.

Even if we were to consider the defendant's challenges on appeal, he would fare no better. The defendant was not entitled to use the shield of the litigation privilege to make threatening statements to the victim that were unrelated to the subject of the court hearing wherein he sought to recover his possessions. See Bassichis v. Flores, 490 Mass. 143, 150 (2022). In addition, there was adequate evidence to prove by a preponderance of the evidence that the defendant's statements included “an expression of 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. Robicheau, 421 Mass. 176, 183 (1995), citing Commonwealth v. Ditsch, 19 Mass. App. Ct. 1005, 1005 (1985). Contrary to the defendant's argument, there is no requirement that a statement satisfy the definition of abuse under G. L. c. 209A, § 1, in order to qualify as an actionable threat under G. L. c. 275, § 2.

Order revoking probation and imposing sentence affirmed.