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18-P-311                                               Appeals Court

                  COMMONWEALTH    vs.   SARAH KURKO.


                             No. 18-P-311.

           Suffolk.      March 12, 2019. - August 1, 2019.

              Present:    Desmond, Sacks, & Lemire, JJ.


Harassment Prevention. Practice, Criminal, Required finding,
     Directed verdict, Stipulation.



     Complaint received and sworn to in the Brighton Division of
the Boston Municipal Court Department on March 8, 2016.

    The case was tried before Myong J. Joun, J.


     Sarah M. Unger for the defendant.
     Monica J. DeLateur, Assistant District Attorney, for the
Commonwealth.


    LEMIRE, J.    After a one-day jury trial, the defendant was

convicted of a single count of violation of a harassment

prevention order.     At the close of the Commonwealth's evidence,

and at the close of all evidence, the defendant moved for a

required finding of not guilty.     Her motions were denied.    On

appeal, she argues that the trial judge erred in denying her
                                                                   2


motion at the close of the Commonwealth's case because there was

insufficient evidence to support her conviction.     Because we

agree that the Commonwealth presented insufficient evidence on

the sole charge, we reverse the judgment and set aside the

verdict.1

     Facts.   We recite the facts in the light most favorable to

the Commonwealth.    The complainant was a concierge at a luxury

condominium complex, whose job was to greet and assist the

residents.    During his employment there, he obtained a

harassment prevention order against the defendant, a resident.

The complainant continued to have regular daily contact with the

defendant at the complex after obtaining the order, despite

trying to avoid her.    On the afternoon of January 5, 2016, while

the harassment prevention order against the defendant was still

active, the complainant was beginning his shift, and was taking

over from a coworker who was ending her shift.    The

complainant's coworker had been assisting the defendant with

paperwork, which was "jumbled and mixed up."     When the

complainant took over the task, he told the defendant that she

needed to put the papers in order, and she "erupted."       The




     1 The defendant also claims that the prosecutor's closing
argument improperly referred to acts of alleged prior harassment
by the defendant. Given our conclusion, detailed infra, that
there was insufficient evidence to support her conviction, we
need not address this claim.
                                                                    3


defendant was "screaming at the top of [her] lungs" and

swearing.   She lunged toward the complainant over the desk, and

pointed her finger in his face.   The complainant told her to

lower her voice and "go to [her] unit," but she refused, and he

ultimately called 911 for assistance.   The interaction lasted

approximately twelve to fifteen minutes before the defendant

"went back up into her unit."

    The defendant testified that the complainant had taken the

papers in question and "just threw them up in the air."    She

admitted that she had gotten upset and angry, and was yelling

and swearing, but denied lunging at the complainant.   During her

testimony, the defendant was not asked about the harassment

prevention order at issue, and made no reference to it.

    Prior to trial, the parties notified the judge that they

intended to stipulate to (1) the existence of the order; (2)

that it was in effect on the date of the offense; and (3) that

the defendant was served with the order and aware of its

existence and terms.   Ultimately, however, no such stipulation

was introduced in evidence or otherwise presented to the jury

before the close of evidence.   Although the parties and the

judge had expressed their expectation that the Commonwealth
                                                                   4


would introduce a redacted copy of the order itself in evidence,

the order was never proffered.2

     At the close of the Commonwealth's evidence, the defendant

moved for a directed verdict, arguing only that the defendant's

conduct did not rise to a level sufficient to violate the order.

At the close of all evidence, the defendant renewed her motion

without additional argument.   During a charge conference, the

parties reiterated their understanding of the stipulation, and

agreed that the judge would not instruct the jury on the element

of knowledge.   Without objection, during the jury charge, the

judge then instructed the jury that "both sides agreed and

stipulated" that (1) a court issued a harassment prevention

order prohibiting the defendant from abusing or harassing the

complainant; (2) the order was in effect on the day of the

alleged violation; and (3) the defendant knew of the order and

its terms.   He instructed the jury that the only element that

they needed to consider was whether the defendant violated the

order by abusing or harassing the complainant.

     Discussion.   On a challenge to sufficiency, we review to

determine "whether, after viewing the evidence in the light most


     2 In addition to the parties discussing the expected
admission of the order prior to trial, the judge in his initial
instructions told the jury, "You will get to see a copy of [the
order], you will get to look at it, and you will learn, as you
hear the evidence, what the order said and whether she violated
that order."
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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, quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).     To

convict a defendant of violation of a harassment prevention

order, the Commonwealth must prove "that a court had issued such

an order; that the order was in effect on the date that the

violation allegedly occurred; that the defendant knew the

pertinent terms of the order; and that the defendant violated

the order."   Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 492

(2002).   "Consequently, unless there is an appropriate

stipulation, at least a redacted [harassment] prevention order

often is introduced to prove the crime of violation of that

order."   Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 109

(2014).

    The Commonwealth appropriately concedes that the

stipulation at issue here was improperly executed, and was not

before the jury prior to the close of evidence in the case.     It

is "incumbent on the Commonwealth to ensure that any stipulation

concerning the existence of an element of the crime charged or

of any material fact related to proof of the crime is presented

in some manner to the jury as part of the evidence of the case."

Commonwealth v. Ortiz, 466 Mass. 475, 476 (2013) (announcing

prospective rule).   "Such a rule is consistent with the
                                                                   6


acknowledged burdens of production and proof that rest with the

Commonwealth in a criminal case."    Id. at 484.   Following Ortiz,

Mass. R. Crim. P. 23, 471 Mass. 1501 (2015), was adopted to provide

clear guidance "for the manner in which stipulations of fact

agreed to by the parties before or during trial are to be

memorialized and used at trial."3   Reporter's Notes to Mass. R.

Crim. P. 23, Massachusetts Rules of Court, at 190 (Thomson

Reuters 2019).   See Mass. G. Evid. § 611(g)(2) (2019).    The

Commonwealth urges that despite its failure to provide the jury

with the stipulation, the error does not merit reversal as it

was merely "technical," and did not result in a substantial risk

of a miscarriage of justice.4    We disagree.

     As the Commonwealth argues, the mutual intent of the

parties to enter into the stipulation at issue was indeed

apparent throughout the trial.    Nonetheless, to be properly

considered to contribute to the Commonwealth's proof, a

stipulation must be presented to the jury during the evidence




     3 "Any stipulation to an essential element of a charged
offense entered by the parties before or during trial shall be
in writing and signed by the prosecutor, the defendant, and
defense counsel. Any such stipulation shall be read to the jury
before the close of the Commonwealth's case and may be
introduced into evidence." Mass. R. Crim. P. 23 (a).

     4 The Commonwealth concedes that the stipulation in this
case was not in compliance with Mass. R. Crim. P. 23 (a) because
it was not reduced to writing, and not signed by the prosecutor,
defense counsel, and the defendant.
                                                                      7


phase.   See Ortiz, 466 Mass. at 484; Mass. G. Evid. § 611(g)(2).

At the close of evidence in the case at bar, the jury had no

evidence before them specifying the terms of the harassment

prevention order at issue and, thus, no basis to conclude that

the defendant had violated the order.     They additionally had

heard no evidence tending to demonstrate that the defendant was

aware of the order and its terms.    Contrary to the

Commonwealth's argument, the fact that the defendant did not

contest the points at issue during the trial is of no moment.      A

"defendant's theory of [her] case cannot relieve the

Commonwealth of its burden of proving every element of a crime

beyond a reasonable doubt."   Commonwealth v. Charles, 456 Mass.

378, 383 (2010), quoting Commonwealth v. Shea, 398 Mass. 264,

269 (1986) (concessions in opening and closing statements do not

constitute valid stipulations).     The Commonwealth's proof at the

close of evidence was fatally insufficient to convict the

defendant, and "a conviction premised on legally insufficient

evidence always creates a substantial risk of a miscarriage of

justice."   Commonwealth v. Montes, 49 Mass. App. Ct. 789, 792

n.4 (2000).   See Commonwealth v. McGovern, 397 Mass. 863, 867-

868 (1986) ("findings based on legally insufficient evidence are

inherently serious enough to create a substantial risk of a

miscarriage of justice").
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     Accordingly, the judgment is reversed and the verdict is

set aside.   Judgment shall enter for the defendant.

                                    So ordered.
