MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the District Court, a jury convicted the defendant, Clodoaldo M. Demelo, of violating an abuse prevention order (G. L. c. 209A, § 7) and acquitted him of threatening to commit a crime (G. L. c. 272, § 2). On appeal, the defendant contends that the evidence was insufficient to prove that he violated the abuse prevention order. We agree and reverse.
Background. The defendant and his girlfriend ended their relationship shortly after the birth of their daughter. Years later, on April 3, 2017, an order issued pursuant to G. L. c. 209A (209A order) prohibiting the defendant from contacting or abusing the girlfriend and requiring the defendant to stay away from her residence. District Court judges thereafter extended the order through a hearing date of April 3, 2019. At the hearing on that date, where the defendant did not appear, a District Court judge extended the order to April 3, 2020. There was no evidence that the 2019 extension order was served on the defendant.
On November 14, 2019, while the order was in effect, the defendant called the girlfriend on her cell phone. She recognized the defendants voice as well as the number appearing on the caller identification. The defendant asked why their daughter (age fourteen) is afraid of her, and the girlfriend ended the call after saying, “[Y]ou cant call me because of the restraining order.”
The defendant then repeatedly called the girlfriends mother. He reported that the girlfriend had men in the house dealing drugs. He told her mother he had been watching the girlfriends house and was “going to send people over to finish her up.” She recognized the caller as the defendant, believed he had been drinking, and took the statement to be a threat to kill the girlfriend. She tried to calm him down and said, “It sounds like youve been drinking, so, lets calm down and forget we had this conversation.” The mother did not tell anyone about the statement the defendant made to her (except her husband who was present at the time of the calls).
The Commonwealth initially proceeded at trial under a theory that the defendant violated the no-contact provision of the 209A order by telephoning the girlfriend. During the trial, however, the Commonwealth was unable to produce evidence that the defendant had notice of the last extension order. Without that evidence, the Commonwealth changed its theory and argued that the defendants subsequent call to the girlfriends mother constituted the 209A violation through a threat to kill (abuse) as well as his admission to observing the house (stay-away). The judge denied the defense motion for a required finding of not guilty.
Discussion. In reviewing a sufficiency claim, we consider “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). The essential elements of violating an abuse prevention order under G. L. c. 209A, § 7, are (1) a court issued an abuse prevention order; (2) the order was in effect on the date of the alleged violation; (3) the defendant knew the terms of the order were in effect; and (4) the defendant violated a term of the order. Commonwealth v. Shea, 467 Mass. 788, 794 (2014). The evidence here failed to satisfy the third and fourth elements.
The evidence did not show that the defendant had notice that the terms of the extension order were in effect at the time he placed calls on November 14, 2019. A one-year extension of the abuse prevention order issued on April 3, 2019, but there was no evidence that the extension order was served on the defendant, and, as the prosecutor conceded at a sidebar discussion, there was no evidence that the defendant had constructive notice of the extension order through other means. Even if the girlfriends conversation with the defendant constituted belated notice of an existing no-contact provision, the defendant did not have any notice that an extension order also prohibited abuse and contained a stay-away provision. Thus, the evidence was insufficient to show “that the defendant knew the relevant terms of the order were in effect, either by having received a copy of the order or by having learned of the terms of the order in some other way.” Shea, 467 Mass. at 794. The defendants knowledge of the terms of prior orders is not sufficient proof that he had knowledge of the order that was in effect on the day of the incident. See Commonwealth v. Molloy, 44 Mass. App. Ct. 306, 308 (1998) (“Knowledge of the process is not the equivalent of knowledge of the existence and terms of a specific order”).
Apart from the defective notice, the evidence also failed to show that the defendant violated the terms of the order by threatening the girlfriend or placing her in imminent fear of serious physical harm. At trial, the Commonwealth claimed that the defendant abused the girlfriend by indirection –- contacting the girlfriends mother and communicating a threat to her once he was informed in the first phone call that he was forbidden from direct contact with the girlfriend. The evidence, however, failed to demonstrate that the mother ever communicated the defendants statement to the girlfriend, much less that doing so placed the girlfriend in imminent fear of serious physical harm. See Commonwealth v. Cove, 427 Mass. 474, 476 (1998) (insufficient evidence of 209A violation where victim unaware that defendant made multiple phone calls to victims home and employer).
Based upon the foregoing, the evidence was not sufficient to prove every essential element of the charged crime. Therefore, the defendants motion for a required finding of not guilty should have been allowed.
Given this result, we need not address additional claims raised by the defendant.
The judgment is reversed; the verdict is set aside, and judgment shall enter for the defendant.