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18-P-1397                                            Appeals Court

               COMMONWEALTH   vs.   MICHAEL J. TIERNAN.


                            No. 18-P-1397.

     Middlesex.        September 5, 2019. - November 22, 2019.

            Present:   Blake, Ditkoff, & McDonough, JJ.


Abuse Prevention. Protective Order.      Due Process of Law, Abuse
     prevention, Notice. Notice.



     Complaint received and sworn to in the Cambridge Division
of the District Court Department on September 30, 2011.

    The case was tried before Roanne Sragow-Licht, J.


     Andrea Lance for the defendant.
     Chia Chi Lee, Assistant District Attorney, for the
Commonwealth.


    BLAKE, J.     Following a jury trial in the District Court,

the defendant, Michael J. Tiernan, was convicted of violating an

abuse prevention order pursuant to G. L. c. 209A, § 7 (209A

order).   On appeal, he claims that the evidence was insufficient

to show that he had knowledge of the 209A order and that he

violated it.   He also claims the judge improperly admitted
                                                                        2


hearsay evidence.    Concluding that the Commonwealth did not put

forth sufficient evidence to prove that the defendant was served

with the 209A order, or that he otherwise had knowledge of it,

we reverse.

     Background.    The jury could have found the following facts.

The victim and the defendant began dating in late 2007.     The

victim ended the relationship in November 2008.    On June 18,

2009, the victim applied for and obtained an ex parte 209A order

against the defendant.    Among other things, the 209A order

prohibited the defendant from contacting the victim and ordered

him to stay at least one hundred yards away from her.     It also

ordered the defendant to stay away from the victim's residence

but did not specify the distance that the defendant was ordered

to remain from the victim's residence.

     At a hearing on June 29, 2009, at which both parties

appeared, the 209A order was extended until July 13, 2009.1       The

defendant was served with this order in hand the following day.

On July 13, 2009, both parties appeared at the hearing and the

209A order was extended for one year to July 13, 2010.    The

defendant was served with the extended order at that hearing.

The following year, on July 13, 2010, only the victim appeared




     1 With one exception not relevant here, no modifications
appear to have been made to the 209A order at any of the
extension hearings.
                                                                   3


at the hearing; the 209A order was extended until July 13, 2011.

The Commonwealth presented no evidence that the defendant was

served with that order.2

     On August 21, 2010, the victim was returning home when she

noticed a black Cadillac Escalade sport utility vehicle (SUV)

that she recognized as belonging to the defendant in the

driveway of a home on Mystic Valley Parkway, which was parallel

to the street on which she lives.   She went directly home and

called the police.   Officers Chris Gallagher and Brett

Blanciforti of the Arlington Police Department responded to the

victim's home.

     The victim informed Officer Gallagher that she had a 209A

order against the defendant and that she had seen his SUV on a

nearby street while on her way home.    She also provided a copy

of the 209A order to the police.

     Officer Blanciforti went to the Mystic Valley Parkway

address and saw a black Cadillac Escalade SUV parked in the

driveway.   A check of the license plate confirmed that the SUV

was registered to the defendant.    Officer Gallagher joined




     2 The Commonwealth concedes that it failed to prove that the
defendant was served with the July 13, 2010, 209A order. Having
reviewed the record, we agree. See Commonwealth v. McClary, 33
Mass. App. Ct. 678, 686 n.6 (1992), cert. denied, 510 U.S. 975
(1993) ("The Commonwealth's 'admission of error' does not
relieve us of our appellate function of determining whether
error was committed").
                                                                      4


Officer Blanciforti at the address and they then saw two people

-- one of whom was later identified as the defendant -- leave

the home and cross the street toward a park.      The police

followed the defendant into the park, confirmed his identity,

and arrested him.     The police told the defendant that he was in

violation of the 209A order because the victim "lived on [a

street] which was under 100 yards."     The defendant indicated

that he understood.      The victim did not have any contact with

the defendant on that day.

    Discussion.     1.   Standard of review.   We review the denial

of a required finding of not guilty by determining "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"

(emphasis and citation omitted).     Commonwealth v. Latimore, 378

Mass. 671, 677 (1979).

    To establish a violation of an abuse prevention order, "the

Commonwealth must prove that (1) a valid G. L. c. 209A order was

entered by a judge and was in effect on the date of the alleged

violation; (2) the defendant violated the order; and (3) the

defendant had knowledge of the order."      Commonwealth v. Silva,

431 Mass. 401, 403-404 (2000).      Intent to violate the order is

not necessary, and the statute "requires no more knowledge than

that the defendant knew of the order."      Commonwealth v.
                                                                     5


Telcinord, 94 Mass. App. Ct. 232, 241 n.17 (2018), quoting

Commonwealth v. Delaney, 425 Mass. 587, 596 (1997), cert.

denied, 522 U.S. 1058 (1998).

    2.      Service of the extended order.   As a general rule, when

a court issues, extends, or modifies an abuse prevention order,

"the register or clerk-magistrate shall transmit two certified

copies of each such order and one copy of the complaint and

summons forthwith to the appropriate law enforcement agency

which . . . shall serve one copy of each order upon the

defendant, together with a copy of the complaint, order and

summons."    G. L. c. 209A, § 7.   If the defendant is not served

in accordance with § 7, however, "that failure of service is not

fatal to a conviction."     Commonwealth v. Griffen, 444 Mass.

1004, 1005 (2005).     Evidence that the defendant received actual

or constructive notice can be used to meet the knowledge element

of the crime.    See M.M. v. Doucette, 92 Mass App. Ct. 32, 37-38

(2017).     See also Commonwealth v. Olivo, 369 Mass. 62, 68

(1975), quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)

("the adequacy of notice so far as due process is concerned is

dependent on whether the form of notice is 'reasonably

calculated to give . . . actual notice of the proceedings and an

opportunity to be heard'").    In those circumstances, the

Commonwealth must prove beyond a reasonable doubt that the

defendant had knowledge of the order and its relevant
                                                                   6


provisions.    See Griffen, supra.   See also Commonwealth v.

Reddy, 85 Mass. App. Ct. 104, 109 (2014), and cases cited.

     Here, the Commonwealth argues that the constructive notice

analysis in Delaney, 425 Mass. at 591-593, applies to this case.

In Delaney, the Supreme Judicial Court held that failure of

service of the first extension of a 209A order is not fatal to a

conviction of violating it where the defendant was properly

served with the ex parte 209A order, and the law mandated that

an extension of the ex parte 209A order enter if the defendant

failed to appear at the first extension hearing.3    Id. at 588,

590-592.   The court reasoned that service of the ex parte order

put the defendant on constructive notice of the possibility of

an extended order; as such, "a party may not 'shut his eyes to

the means of knowledge which he knows are at hand, and thereby

escape the consequences which would flow from the notice if it

had actually been received.'"    Id. at 592, quoting Olivo, 369

Mass. at 69.




     3 General Laws c. 209A, § 4, provides in relevant part:
"[T]he court may enter such temporary relief orders without
notice as it deems necessary to protect the plaintiff from abuse
and shall immediately thereafter notify the defendant that
temporary orders have been issued. The court shall give the
defendant an opportunity to be heard on the question of
continuing the temporary order. . . . If the defendant does not
appear at such subsequent hearing, the temporary orders shall
continue in effect without further order of the court."
                                                                     7


     The procedural posture of this case, however, is distinct

from that in Delaney and is governed in all material respects by

Commonwealth v. Molloy, 44 Mass. App. Ct. 306 (1998).    In

Molloy, the defendant appeared at three extension hearings but

did not appear for the fourth and fifth successive annual

extensions of the 209A order, and he was not served with the

extension orders.   Id. at 307.   The defendant was convicted of

violating the 209A order after the fourth and fifth extensions,

and this court reversed, holding that the constructive notice

analysis in Delaney did not apply to successive annual

extensions of a 209A order.   Id. at 308-309.   The court reasoned

that, unlike in Delaney, extension was not mandated if the

defendant failed to appear,4 and the defendant "was entitled to

rely upon the provisions of G. L. c. 209A, § 7, . . . and could

expect to be served a copy of any extension order that issued."5


     4 General Laws c. 209A, § 3, provides in relevant part: "If
the plaintiff appears at the court at the date and time the
order is to expire, the court shall determine whether or not to
extend the order for any additional time reasonably necessary."

     5 Notably, since Delaney and Molloy, the Legislature amended
§ 7, see St. 2014, c. 260, § 14, to provide for additional
notice to defendants:

     "Law enforcement agencies shall establish adequate
     procedures to ensure that, when effecting service upon a
     defendant pursuant to this paragraph, a law enforcement
     officer shall, to the extent practicable: (i) fully inform
     the defendant of the contents of the order and the
     available penalties for any violation of an order or terms
     thereof and (ii) provide the defendant with informational
                                                                      8


Molloy, supra at 309.   Here, because there was no service of the

July 13, 2010, extension of the 209A order, the Commonwealth had

the burden of proving that the defendant had actual knowledge of

the order.

    The Commonwealth contends that the defendant's indication

to the police that he "understood" why he was being arrested was

sufficient to show knowledge of the extension of the 209A order.

Without more than the officer's testimony that the defendant

indicated that he understood why he was being arrested, this was

not an inference that the jury could draw.     Compare Commonwealth

v. Mendonca, 50 Mass. App. Ct. 684, 688 (2001) (affirming

judgment where victim testified she told defendant "a few times"

that he was not permitted to call, and he responded that he

"didn't believe" in abuse prevention orders), with Commonwealth

v. Welch, 58 Mass. App. Ct. 408, 410-411 (2003) (reversing

judgment where victim testified that "[o]nce or twice maybe" she

had telephone conversation with, and told defendant about, order

but did not testify to any further details).




    resources, including, but not limited to, a list of
    certified batterer intervention programs, substance abuse
    counseling, alcohol abuse counseling and financial
    counseling programs located within or near the court's
    jurisdiction."
                                                                   9


     Conclusion.   As to the defendant's conviction of violating

an abuse prevention order, the judgment is reversed, the verdict

is set aside, and judgment shall enter for the defendant.6

                                   So ordered.




     6 We need not reach the defendant's remaining contentions in
light of our disposition.
