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No. 02-P-607.

Appeals Court of Massachusetts, Hampshire.

Argued February 5, 2003.

Decided April 15, 2003.



        Darla J. Mondou, Upton, for the defendant.

        Cynthia M. Pepyne, Assistant District Attorney, for the Commonwealth.

Page 426

        Present: DUFFLY, DREBEN, & KANTROWITZ, JJ.

        DREBEN, J.

        The question raised in this appeal is whether a defendant may be convicted of violating a protective order (G.L. c. 209A) to stay away from a protected person's workplace if the alleged violation occurred at a time when the protected person was not at her workplace. The defendant claims there was insufficient evidence of a violation and that the District Court judge should have allowed his motion for a required finding of not guilty.

        Looking at the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the jury could have found the following facts.1 The defendant's former girlfriend, whom we shall call Jane, had, prior to the incident, obtained a protective order under G.L. c. 209A ordering the defendant not to abuse her, not to contact her, and "to stay at least 100 yards" from her, to stay away from her residence (location stated), and, "to stay away from [her] workplace located at 210 & 212 Main Street, Northampton."

        Jane and the defendant had had an "off and on" relationship for about eight years, which ended in December, 2000. In the late fall of 2000, Jane began dating a co-worker in her office. The defendant was aware of Jane's new relationship.

        About ten persons worked in the office, and the desks of Jane and the co-worker she was dating were in the same room. On February 22, 2001, Jane called the office to tell them that she was sick. She did not come to work on that day. Her coworker was in the office on February 22, and, at about 4:20 P.M. in the afternoon, he heard a loud horn blowing several times. When he looked out the window he saw the defendant stopped about forty feet away in a pickup truck.2 He knew the defendant because he had previously seen him in the office. The defendant looked at the coworker, raised himself up out of the truck window, and started shouting obscenities and making threats. The co-worker subsequently called the police.

        To establish a violation of G.L. c. 209A, 7, the Commonwealth must prove that (1) a valid G.L. c. 209A order was entered by a judge; (2) the order was in effect on the date of the alleged violation; (3) the defendant had knowledge of the order; and (4) the defendant violated the order. Commonwealth v. Delaney, 425 Mass. 587, 595-597, 682 N.E.2d 611 (1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998). Commonwealth v. Collier, 427 Mass. 385, 388, 693 N.E.2d 673 (1998). Commonwealth v. Silva, 431 Mass. 401, 403, 727 N.E.2d 1150 (2000). The parties stipulated that the first three requirements were satisfied.

        As previously indicated, the defendant contends that he did not violate the order because Jane was not present when the alleged violation occurred. He concedes that his actions would have been a violation of the order if Jane had been present.

        The defendant's reliance on Commonwealth v. O'Shea, 41 Mass.App.Ct. 115, 668 N.E.2d 861 (1996), is misplaced. There, the court specifically noted that there was no violation of the order in that case because "there was no evidence that the defendant [had come] within 100 yards of

Page 427

[the woman's] workplace while she was there or that the defendant entered the area of the workplace while she was not there" (emphasis supplied).3 Id. at 118, 668 N.E.2d 861. Here, the jury were warranted in finding that the defendant knowingly shouted obscenities and made a threatening gesture to a person inside, thus intruding directly into Jane's work-place in violation of the stay-away order. That Jane was not there was a fortuitous circumstance that does not constitute a defense to the defendant's actions.

        An order to stay away from a protected person's workplace puts the work-place itself off limits in order to create a safe haven for him or her at work, leaving fewer opportunities for abusive contact. See Commonwealth v. Gordon, 407 Mass. 340, 347, 553 N.E.2d 915 (1990); Commonwealth v. O'Shea, supra. Not only was the order not conditioned on Jane's presence, but, as the Commonwealth points out, a protective order should not be interpreted in a manner to encourage a defendant to keep himself or herself informed about a protected person's schedule.

        Since there was sufficient evidence of the defendant's violation of the order, the judgment is affirmed.