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16-P-1741                                               Appeals Court

                COMMONWEALTH   vs.   SAUL B. GOLDMAN.


                          No. 16-P-1741.

     Middlesex.      December 11, 2017. - October 17, 2018.

              Present:   Agnes, Sacks, & Lemire, JJ.


Harassment Prevention. Protective Order. Practice, Criminal,
     Instructions to jury. Probable Cause. Words, "Remain
     away."



     Complaint received and sworn to in the Lowell Division of
the District Court Department on February 23, 2015.

     A motion to dismiss was heard by Michael J. Brooks, J., and
the case was tried before Daniel C. Crane, J.


     Christopher DeMayo for the defendant.
     Asher Kim, Assistant District Attorney, for the
Commonwealth.


    SACKS, J.   The defendant was convicted of violating the

provisions of two G. L. c. 258E harassment prevention orders

that required him to "remain away from [the protected persons']

residence."   On appeal, the defendant argues that the remain-

away provision was misinterpreted, both by a motion judge in
                                                                    2


refusing to dismiss the complaint for lack of probable cause,

and by the trial judge in responding to a jury question about

the provision.

     We conclude that ordinarily, the remain-away provision of a

c. 258E order prohibits a defendant from (1) crossing the

residence's property line, (2) engaging in conduct that intrudes

directly into the residence, and (3) coming within sufficient

proximity to the property line that he would be able to abuse,

contact, or harass a protected person if that person were on the

property or entering or leaving it.   A protected person need not

actually be present for such a violation of the order to occur.1

     Applying these standards here, we conclude that there was

probable cause to issue the complaint, but that it was an abuse

of discretion for the trial judge to instruct the jury, in

response to their request to explain the remain-away provision,

that they should give the phrase its "plain meaning," using

their common sense and life experiences.   The defendant is

therefore entitled to a new trial.

     Background.   The defendant had been a member of the

Montefiore Society Synagogue, a small congregation located in

Lowell, since at least 2007.   After the defendant's conduct at

     1 In two other cases decided today, we reach a similar
interpretation of the stay-away provision in a typical G. L.
c. 209A abuse prevention order. See Commonwealth v. Telcinord,
94 Mass. App. Ct.   (2018); Commonwealth v. Watson, 94 Mass.
App. Ct.   (2018).
                                                                   3


the synagogue led to disputes between him and John and Mary

Smith (pseudonyms) -- a husband and wife who held leadership

positions in the congregation -- the Smiths obtained essentially

identical c. 258E orders against the defendant in 2011.    The

orders, issued on the Trial Court's preprinted forms, originally

required the defendant not to abuse or harass the Smiths, not to

contact them, to stay at least one hundred yards away from them,

and to "remain away from [their] residence located at" a

specified address in Lowell.2   The defendant also lived in a

house in Lowell, and he owned a rental property in Lowell, not

far from the Smiths' residence.

     The orders were extended in 2012 and 2013; they were

extended again in 2014, with the modification that the defendant

was no longer required to remain one hundred yards away from the

Smiths or to refrain from contacting them.   The orders were

extended yet again in 2015, with the further modification that

the defendant could "attend services at the synagogue . . .

respectfully and not abuse" the Smiths.

     Shortly thereafter, a large snowstorm having been forecast

for Saturday, February 21, 2015, the Smiths invited members of

the synagogue to spend the night of February 20 at the Smith

residence, so that services could be conducted at the residence


     2 The remain-away provision appears next to a checkbox
numbered "3" on the preprinted form.
                                                                    4


the following day without members having to travel outdoors.

About fourteen members accepted.   The defendant was not invited.

    There was conflicting evidence about what occurred during

services the next morning.   The Commonwealth's case included

evidence that John Smith looked out his living room window and

noticed the defendant walking along the street within thirty to

forty feet of the Smiths' property.     He asked his wife to call

the police.   She then looked out another window, saw the

defendant walking up their driveway, and called 911.     A police

officer arrived a few minutes later and observed the defendant

standing in front of the Smiths' house.     The officer spoke to

the Smiths and then arrested the defendant for violating the

c. 258E orders.

    The defendant told a different story.     He testified that he

had walked to the synagogue that morning but, finding no one

there, walked in the direction of his rental property to speak

to his tenants.   Because the Smiths lived nearby, he also walked

toward their residence, to see "if they did their service there

so that I wouldn't be able to come."    The defendant testified

that he wanted to see whether there were cars at the Smiths'

residence, and that he came no closer than an intersection that,

according to a map admitted in evidence, was one and one-half

blocks from the Smiths' residence.     He denied that he went to

the Smiths' house or onto their driveway.
                                                                   5


    After the defense rested, the judge informed the

Commonwealth and defense counsel that, as to the meaning of

"staying away from the residence . . . I can anticipate that the

jury could have a question about that," and that he intended his

instruction to "leave it as [']remain away from the residence[']

and it will be up to the jurors to decide what that means."

This was the central issue in the case.   Both closing arguments

focused solely on whether the defendant had violated the "remain

away from the . . . residence" provisions of the orders.   The

judge's final charge stated the pertinent element of the

offenses as whether the defendant had violated the orders "by

failing to stay away from a particular address."

    As the judge had predicted, during their deliberations, the

jury sent a note asking, "Is there further definition/

specification available for what it means to 'remain away from

the plaintiff's residence' . . .?   Does it mean to stay off

property . . . or a certain distance away . . . or nowhere in

vicinity, etc.?"   The prosecutor proposed that the judge answer

by instructing that the phrase had "no strict definition" and

that the jury should consider "the plain meaning of what it is

to 'stay away' from a given location, using [their] common sense

and life experiences."   Defense counsel objected, arguing that

the phrase was ambiguous and vague, that the ambiguity was

required to be resolved in the defendant's favor, and
                                                                   6


accordingly that "residence means residence.   Was he in the

residence [or] was he not in the residence is really the

question."

     The judge chose to give the Commonwealth's proposed answer,

and thus he instructed the jury:

     "[T]he term stay away has no strict definition for you to
     consider; instead, you are to assess the term by the plain
     meaning by what it is to stay away from a given location
     using your common sense and life experiences. You may
     consider the credible facts and the credible evidence and
     circumstances of this case as you find them to determine
     whether or not the defendant's actions complied with the
     stay-away order."

The jury then returned guilty verdicts on both charges.

     Discussion.   Because the meaning of the remain-away

provision is examined most productively in the context of the

judge's response to the jury question, we begin with that issue.

We then return to the question whether there was probable cause

to issue the complaint.3




     3 We reject the defendant's third argument: that the
complaint should have been dismissed based on a 2007 rabbinical
court ruling in a dispute between himself and John Smith. That
ruling recited the parties' agreement to submit to the
rabbinical court's jurisdiction and be bound by its decision.
It then stated that the defendant could return to the synagogue
for all prayers (a privilege that could be revoked for uncivil
behavior) and that all future claims of trespassing would be
addressed to that court. Whatever the effect of that ruling on
matters involving conduct at the synagogue, it did not deprive
the courts of the Commonwealth of jurisdiction to issue and
enforce G. L. c. 258E orders requiring the defendant to remain
away from the Smiths' residence.
                                                                     7


     1.   Response to jury question.   "The proper response to a

jury question must remain within the discretion of the trial

judge, who has observed the evidence and the jury firsthand and

can tailor supplemental instructions accordingly."    Commonwealth

v. Waite, 422 Mass. 792, 807 n.11 (1996).    But that discretion

is not unlimited.   "The alertness of the jury in this situation

was impressive, and, unless for some particular reason it would

be unfair to do so, the judge was obligated to respond with an

accurate statement of the law."    Commonwealth v. Thomas, 21

Mass. App. Ct. 183, 186 (1985).    "When a jury makes explicit its

difficulties, a trial judge should clear them away with concrete

accuracy."    Id., quoting Bollenbach v. United States, 326 U.S.

607, 612-613 (1946).    See Commonwealth v. Leahy, 445 Mass. 481,

501 (2005).

     Here, although there is little appellate authority on the

meaning of a remain-away provision, there was a clear answer to

that part of the jury's question asking whether the phrase meant

"nowhere in [the] vicinity."    We have held, in the context of a

stay-away provision of a G. L. c. 209A abuse prevention order,4

that:

     "The word 'vicinity,' according to Black's Law Dictionary
     (6th ed. 1990), means, 'Quality or state of being near, or

     4 "[F]or the most part, both the Supreme Judicial Court and
this court have applied the case law relating to c. 209A to
cases arising under c. 258E." A.P. v. M.T., 92 Mass. App. Ct.
156, 161 (2017).
                                                                     8


    not remote; nearness; propinquity; proximity; a region
    about, near or adjacent . . . .' The word is so imprecise
    that if we hold that the 'stay away' order means stay away
    from the 'vicinity' of the workplace, the order would fail
    to meet the requirement that it must be clear."

Commonwealth v. O'Shea, 41 Mass. App. Ct. 115, 118 (1996),

overruled on other grounds, Commonwealth v. Delaney, 425 Mass.

587, 597 n.9 (1997), cert. denied, 522 U.S. 1058 (1998).     The

jury here thus should have been instructed that they could not

convict the defendant based solely on a finding that he was in

the vicinity of the protected residence.

    O'Shea also provides guidance on another possible meaning

of "remain away" identified by the jury:   "to stay off [the]

property."   Although decided in the context of a stay-away order

listing a workplace rather than a residence, O'Shea makes clear

that such an order is not limited to the building the address of

which is listed on the order, but extends at least to the

property line.   O'Shea, 41 Mass. App. Ct. at 116, 118.     "[T]he

'stay away' order is not limited to preventing the defendant

from merely entering the town hall itself ([the protected

person's] workplace).   Rather, such an order . . . extends to

all of the property on which the workplace is located[,]

including the adjacent parking lot."   Id. at 118.   This

interpretation "create[s] a safe haven for [the protected

person] at her workplace, a place 'in which no further abuse
                                                                       9


need be feared . . . ."     Id., quoting Commonwealth v. Gordon,

407 Mass. 340, 347 (1990).5

     Nor does O'Shea establish the outer limit of the meaning of

"stay away" or "remain away."     We subsequently held that a

defendant violated a c. 209A stay-away order by stopping his

truck twenty to forty feet away from the protected person's

workplace, honking his horn, shouting obscenities, and making a

threatening gesture.      Commonwealth v. Habenstreit, 57 Mass. App.

Ct. 785, 786 & n.2, 787 (2003).         Such conduct "intrud[ed]

directly into [the] workplace in violation of the stay-away

order," notwithstanding that the protected person was not

present at the time.      Id. at 787.    To interpret a stay-away

order as permitting such intrusive conduct as long as it was

committed outside (or even some distance from) the property line

would contravene the prophylactic purpose of a stay-away order:

"to create a safe haven . . . , leaving fewer opportunities for

abusive contact."   Id.    Further illustrating this prophylactic

purpose, a stay-away order applies even when the protected

person is not present, so as to avoid "encourag[ing] a defendant

     5 This interpretation also gives meaning to the statutory
language authorizing the court to order the defendant to remain
"away from" a protected person's residence or workplace
(emphasis added), see G. L. c. 209A, § 3 (c); G. L. c. 258E,
§ 3 (a) (iii), and the corresponding language in c. 209A and
c. 258E orders. Such language does more than require a
defendant merely to remain "out of" the building that
constitutes the residence or workplace. "Away from" has a
broader meaning.
                                                                  10


to keep himself or herself informed about a protected person's

schedule."   Id.

    In the context of a c. 258E order, we think this protective

purpose is best served by interpreting the remain-away provision

so as to reduce the opportunities for conduct that violates the

other provisions of the order.   The typical c. 258E order issued

on the preprinted form requires the defendant, among other

things, not to "abuse," "harass," or "contact" the protected

person, and each of those terms typically is further defined in

the body of the order itself.    We therefore conclude that, if no

distance is specified, the remain-away provision of a typical

c. 258E order prohibits the defendant from (1) crossing the

residence's property line, (2) engaging in conduct that intrudes

directly into the residence, and (3) coming within sufficient

proximity to the property line that he would be able to abuse,

contact, or harass a protected person if that person were on the

property or entering or leaving it.   A protected person need not

actually be present for such a violation of the order to occur.

    This standard both furthers the purpose of c. 258E and

addresses the defendant's due process concerns by providing

meaningful guidance to defendants and to law enforcement

authorities.   As in the context of c. 209A orders, "[d]ue

process requires clarity of expression with the purpose of

giving a person of ordinary intelligence a reasonable
                                                                     11


opportunity to know what the order prohibit[s], so that he might

act accordingly; and with the further purpose of enabling a

putative enforcer of the order to apply it without

discrimination."    Commonwealth v. Butler, 40 Mass. App. Ct. 906,

907 (1996).   See Delaney, 425 Mass. at 592.

    But we reject the defendant's argument that vagueness

concerns require a bright-line rule under which the protection

of the remain-away provision stops at the property line.     A

provision is not impermissibly vague "if it requires a person to

conform his conduct to an imprecise but comprehensible normative

standard."    Commonwealth v. McGhee, 472 Mass. 405, 414 (2015),

quoting Commonwealth v. Orlando, 371 Mass. 732, 734 (1977).      "A

sufficiently definite warning may be achieved by judicial

construction . . . ."    Commonwealth v. Gallant, 373 Mass. 577,

581 (1977).

    Two caveats are in order.     First, not all parts of the

standard we have identified will necessarily apply in every

case, because, as this case illustrates, not every c. 258E order

prohibits the same conduct.    The orders here prohibited the

defendant from abusing or harassing the protected persons, but

not from contacting them.     Thus it might have confused the jury

to mention "contact" in explaining the circumstances under which

the defendant's proximity to the property line would violate the
                                                                  12


remain-away provision.6   Conversely, other c. 258E orders may

include prohibitions in addition to those against abuse,

contact, or harassment.   Depending on the nature of such an

additional prohibition, it may be that a defendant violates the

remain-away provision if his proximity to the property line

would enable him to violate that prohibition if the protected

person were on the property or entering or leaving it.     We leave

such issues for another day.

     Second, as we have previously recognized, "some of the

difficulties in determining [violations of remain-away orders]

can be avoided by ordering the person to stay a specific

distance from the workplace or residence."     Habenstreit, 57

Mass. App. Ct. at 787 n.3.     A judge issuing a c. 258E order need

not leave it to the parties in the first instance to apply the

new standard we identify here to determine the meaning of

"remain away."   Instead, the judge may specify in the text of

the order a particular distance that the defendant must remain

away from the property line or from any specified portion of the

property.   Such a specified distance may be added or altered


     6 Tailoring an instruction to avoid jury confusion may have
little or no effect on the practical scope of the protection
offered by a remain-away provision. A defendant close enough to
contact a protected person (were she present on, entering, or
leaving the property) might, in practice, also be close enough
to engage in abuse or harassment, which may be accomplished by
verbal acts alone, and such proximity would violate the remain-
away provision.
                                                                    13


(or, for that matter, deleted) based on the facts and in light

of experience in a particular case.   The judge's goal should be

to make an order that shields the protected party from the risk

of future harassment, abuse, or contact, as the case may be.

The greater the precision with which the remain-away area can be

identified, the greater the likelihood that a defendant, and law

enforcement authorities, will know what is and what is not a

violation.

    Returning to the case before us, we conclude that the

judge's answer to the jury's question -- that they should give

the remain-away provision its "plain meaning," using their

common sense and life experiences -- did not adequately inform

the jury about the meaning of that provision.    Cf. Commonwealth

v. Raymond, 54 Mass. App. Ct. 488, 494 (2002) (instruction

inadequate where it "left the jury without guidance as to what

constituted a violation" of c. 209A no-contact order).       To

accept the judge's answer would leave each defendant to guess at

the interpretation of the remain-away provision -- a term of a

court order -- and make that interpretation a subjective

judgment call for the jury.

    The jury asked, among other things, whether presence

anywhere in the "vicinity" of the Smiths' residence would

constitute a violation; the correct answer -- no -- was not

given.   See O'Shea, 41 Mass. App. Ct. at 118.   There was
                                                                   14


testimony that the defendant had gone onto the Smiths' property,

but there was also the defendant's testimony that he had come no

closer than a point one and one-half blocks from the Smiths'

house.    We cannot know which testimony the jury believed.   If

the jury believed the defendant, they could still have convicted

him based on the instructions they received.   We cannot know

whether, if properly instructed, they would have found that from

such a location the defendant would have been able to harass or

abuse either of the Smiths had they been on, entering, or

leaving their property.7   Accordingly, the defendant is entitled

to a new trial.

     2.   Denial of motion to dismiss complaint.   We must also

determine whether the motion judge properly denied the

defendant's motion to dismiss the complaint for lack of probable




     7 It appears undisputed that the Smiths were on the property
at the relevant time, and nothing we say is intended to restrict
trial judges' usual discretion to tailor their instructions in
such situations, e.g., to refer where helpful to a protected
party's actual, rather than hypothetical, location. Of course,
the remain-away standard also focuses on whether a defendant was
sufficiently close that he would have been able to harass or
abuse a protected party entering or leaving the property,
regardless of whether or how the protected party was actually
doing so at the time. We also note that our discussion above
does not focus on whether the defendant's conduct "intrud[ed]
directly into" the Smiths' residence within the meaning of
Habenstreit, 57 Mass. App. Ct. at 787. The Commonwealth did not
pursue any such theory at trial, and we do not decide whether an
instruction on this aspect of a remain-away violation would have
been warranted.
                                                                   15


cause.8   See generally Commonwealth v. DiBennadetto, 436 Mass.

310, 313 (2002).    "[A] motion to dismiss a complaint is decided

from the four corners of the complaint application, without

evidentiary hearing" (quotation omitted).    Commonwealth v.

Humberto H., 466 Mass. 562, 565 (2013).     Probable cause requires

"reasonably trustworthy information . . . sufficient to warrant

a prudent man in believing that the defendant had committed or

was committing an offense."   Commonwealth v. McCarthy, 385 Mass.

160, 163 (1982), quoting Commonwealth v. Stevens, 362 Mass. 24,

26 (1972) (probable cause standard for indictment).    See

DiBennadetto, supra.

     Here, the defendant's motion argued that the remain-away

provision could be violated only by his actually going onto the

Smiths' property.   We have concluded, however, that a defendant

may also violate a remain-away provision by, among other things,

coming within sufficient proximity to the property line that he


     8 In Commonwealth v. Huggins, 84 Mass. App. Ct. 107 (2013),
we said: "Because the defendant went to trial and was found
guilty, there is no basis for a claim of prejudice resulting
from a pretrial determination of probable cause." Id. at 109-
110, citing Commonwealth v. Greenwood, 78 Mass. App. Ct. 611,
622, cert. denied, 565 U.S. 913 (2011). The claim in Huggins
was that the police lacked probable cause to arrest the
defendant because they improperly relied on certain evidence in
concluding that he was intoxicated. Huggins, 84 Mass. App. Ct.
at 109. Huggins does not hold that a conviction precludes
review of the denial of a motion to dismiss a complaint for lack
of probable cause where the defendant asserts that the denial
was premised on an incorrect legal standard for determining
whether certain conduct was (or was probably) criminal.
                                                                   16


would be able to abuse or harass a protected person if that

person were on the property or entering or leaving it.   The

arresting officer here, in reports attached to the complaint

application, stated in pertinent part that he had observed the

defendant "walking away from" the Smiths' address, and that the

defendant was "two houses down (well within 100 [yards] of)"

that address "when [the defendant] violated the orders."9   This

was sufficient to establish probable cause.

     Conclusion.   The judgments are reversed, the verdicts are

set aside, and the case is remanded for further proceedings.

                                    So ordered.




     9 The complaint application did not mention the Smiths'
statements about where they had seen the defendant, or the
arresting officer's statement that he saw the defendant standing
in front of the house. That evidence emerged only at trial.
