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SJC-12078

                COMMONWEALTH   vs.   BRIAN E. GERNRICH.



     Worcester.       September 8, 2016. - January 12, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


Practice, Criminal, False report.     Police Officer.     Sheriff.
     Statute, Construction.



     Complaint received and sworn to in the Clinton Division of
the District Court Department on June 4, 2014.

    The case was heard by Christopher P. LoConto, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Darla J. Mondou for the defendant.
     Michelle R. King, Assistant District Attorney, for the
Commonwealth.


    HINES, J.     Following a jury-waived trial in the Clinton

Division of the District Court, the defendant, Brian E.

Gernrich, was convicted of making a false report of a crime to a

police officer in violation of G. L. c. 269, § 13A.       The
                                                                      2


complaint charged that the defendant, an inmate, falsely

reported a sexual assault to a deputy sheriff employed at the

facility.    The defendant appealed, claiming that a deputy

sheriff is not a police officer within the meaning of the

statute and, as a consequence, the evidence was insufficient to

sustain the conviction.     We granted his application for direct

appellate review.     The issue as presented here requires us to

determine whether, as the Commonwealth argues, the term "police

officers" used in G. L. c. 269, § 13A, includes the broad class

of law enforcement officers authorized to perform certain police

duties.     We conclude, for the reasons explained below, that a

deputy sheriff is not a "police officer" within the meaning of

G. L. c. 269, § 13A; the statute includes within its reach only

those law enforcement officers with the full authority to serve

as police officers under G. L. c. 41, § 98.     Therefore, we

reverse the defendant's conviction.

    1.      Background.   The material facts are undisputed.    In

May, 2014, the defendant was an inmate at the Worcester County

house of correction (jail).     A correction officer entered the

defendant's cell to conduct an inspection.     After inspecting the

cell, the officer told the defendant that material covering the

air vent would have to be removed.     The defendant then walked

out of the cell, exclaiming, "Well why are you touching [my]

dick?"
                                                                   3


     After his interaction with the correction officer, the

defendant telephoned the Prison Rape Elimination Act1 (PREA)

hotline2 and reported that the correction officer, who earlier

had inspected his cell, sexually assaulted him.   See 42 U.S.C.

§§ 15601 et seq. (2012).   According to the report, the

correction officer called the defendant into the cell and then

touched the defendant's penis.   In accordance with the PREA

protocol, the defendant's report was forwarded to Captain David

S. Anderson, the commanding officer on duty at the time of the

defendant's report.   Captain Anderson interviewed the defendant,

who repeated his allegation that the correction officer had

touched the defendant's penis.



     1
       Congress enacted the Prison Rape Elimination Act (PREA or
act) in 2003, to address and eliminate the high incidents of
sexual assault in prisons. 42 U.S.C. § 15602 (2012). To
accomplish this purpose, the act provides, among other things,
grants to States to assist them in protecting inmates and
safeguarding communities to which the inmates return. 42 U.S.C.
§ 15605 (2012). States may use grants allocated for the
protection of inmates from sexual abuse for any of the following
purposes: "(A) undertaking efforts to more effectively prevent
prison rape; (B) investigating incidents of prison rape; or (C)
prosecuting incidents of prison rape." 42 U.S.C. § 15605(b)(1).
     2
       The Worcester County house of correction PREA hotline is a
toll free, twenty-four hour hotline that allows inmates to
anonymously report instances of sexual assault that occur inside
the house of correction. When an inmate places a call to the
hotline, the inmate is connected to an answering machine, where
the inmate may leave a message reporting the sexual assault.
The house of correction dispatch center checks the hotline
messages twice daily.
                                                                    4


     After this interview, Captain Anderson sent an electronic

mail (e-mail) message summarizing the defendant's report to

officials in the Worcester County sheriff's department.    Eric

Scott, a Worcester County deputy sheriff designated as a PREA

certified investigator, received the e-mail message and

commenced an investigation.   As part of the investigation,

Deputy Scott interviewed the defendant, the defendant's

cellmate, and the accused correction officer.   Deputy Scott also

viewed a surveillance video recording of the incident.    After

concluding his investigation, Deputy Scott determined that the

defendant's allegation was unfounded.   The matter was referred

to the Worcester County district attorney's office, and    the

defendant was charged with a violation of G. L. c. 269, § 13A,

based on the report to Deputy Scott.

     At the trial, the defendant argued that a deputy sheriff is

not a police officer within the meaning of G. L. c. 269, § 13A.3

The judge, citing "the trend [in the case law] . . . treat[ing]

[d]eputy [s]heriffs as police officers," rejected that argument

and found the defendant guilty.




     3
       The defendant also claimed that the charge was not false.
The judge, however, expressly credited the testimony of the
accused correction officer and other witnesses in making the
guilty finding.
                                                                    5


     2.   Discussion.   a.   Standard of review.   The issue whether

a deputy sheriff4 is a police officer within the meaning of G. L.

c. 269, § 13A, presents a question of statutory interpretation

that we review de novo.      Boston Police Patrolmen's Ass'n v.

Boston, 435 Mass. 718, 719 (2002).

     b.   Statutory interpretation.    We begin the analysis with

the language of G. L. c. 269, § 13A, which provides:

          "Whoever intentionally and knowingly makes or causes
     to be made a false report of a crime to police officers
     shall be punished by a fine of not less than one hundred
     nor more than five hundred dollars or by imprisonment in a
     jail or house of correction for not more than one year, or
     both" (emphasis supplied).

"The general and familiar rule is that a statute must be

interpreted according to the intent of the Legislature

ascertained from all its words construed by the ordinary and

approved usage of the language, considered in connection with

the cause of its enactment, the mischief or imperfection to be

remedied, and the main object to be accomplished."     Lowery v.

Klemm, 446 Mass. 572, 576-577 (2006), quoting Hanlon v. Rollins,

286 Mass. 444, 447 (1934).     The language of a statute is

interpreted in accordance with its plain meaning, and if the


     4
       The Commonwealth does not argue that Captain Anderson, the
correction officer to whom the defendant initially made his
report, is a police officer within the meaning of G. L. c. 269,
§ 13A. Therefore, we consider the application of the statute
only as to Deputy Sheriff Scott, to whom the defendant repeated
his false claim of a sexual assault.
                                                                     6


"language is clear and unambiguous, it is conclusive as to the

intent of the Legislature."    Meikle v. Nurse, 474 Mass. 207, 210

(2016), quoting Commissioner of Correction v. Superior Court

Dep't of the Trial Court for the County of Worcester, 446 Mass.

123, 124 (2006).

    The plain language of G. L. c. 269, § 13A, conveys a single

statutory purpose:   the prohibition of a false report of a crime

to "police officers."   It does not, however, define "police

officers" or otherwise distinguish among the broad class of law

enforcement officers who may perform police duties in the course

of their employment.    "When a statute does not define its words,

we give them their usual and accepted meanings, as long as these

meanings are consistent with the statutory purpose. . . .      We

derive the words' usual and accepted meanings from sources

presumably known to the statute's enactors, such as their use in

other legal contexts" (citation omitted).    Commonwealth v. St.

Louis, 473 Mass. 350, 355 (2015).    In such circumstances, "we

may 'turn to extrinsic sources, including the legislative

history and other statutes, for assistance in our

interpretation.'"    Commonwealth v. Wynton W., 459 Mass. 745, 747

(2011), quoting Commonwealth v. Deberry, 441 Mass. 211, 215

(2004).
                                                                      7


     Although the term "police officer" appears in a variety of

statutory contexts,5 we adopt the definition in G. L. c. 41,

§ 98, to guide our analysis of the issue.    General Laws c. 41,

§ 98, which authorizes the appointment of "police officers" for

cities and towns, is an appropriate guide for the interpretation

of G. L. c. 269, § 13A, because it permits a distinction between

the broad class of law enforcement officers empowered to perform

only certain police duties and those expressly designated as

"police officers" without such limitations.    The definition of

police officer in G. L. c. 41, § 98, encompasses a broad range

of authority, including the power to make warrantless arrests,

that is unique within the class of law enforcement officers.     In

other words, a police officer is a law enforcement officer but

not all law enforcement officers are police officers.    It is

this broad authority, granted only to persons appointed as

police officers by cities and towns, that defines the term for

the purposes of G. L. c. 269, § 13A.

     General Laws c. 41, § 98, incorporates and expands upon the

common-law definition of police officer.    More specifically, the


     5
       See, e.g., G. L. c. 22C, § 63 (employees of colleges,
universities, other educational institutions or hospitals
appointed as "special state police officers," to perform police
duties on "lands or structures owned" by institution); G. L.
c. 127, § 127 (employees of department of correction or parole
board appointed as "special state police officers" to "perform
police duty about the premises of penal institutions").
                                                                   8


statute provides that "police officers of all cities and towns

shall have all the powers and duties of constables, except

serving and executing civil process."   Id.   In addition to the

powers of constables,6 the statute expressly authorizes police

officers to "suppress and prevent all disturbances and

disorder," "examine all persons abroad whom they have reasons to

suspect of unlawful design," "disperse any assembly of three or

more persons," and "enter any building to suppress a riot or

breach of peace therein," among other things.

     Although the power of arrest is not explicitly enumerated

in G. L. c. 41, § 98, it is recognized in the common law.     A

police officer has broad arrest powers and may exercise this

authority without the limitations that apply to the generic

category of law enforcement officers.   Police officers may make

warrantless arrests for misdemeanors involving breaches of the

peace committed in the officer's presence.    Commonwealth v.

Grise, 398 Mass. 247, 249 n.2 (1986).   More importantly,

however, under common law, police officers have the power to

arrest any person within the officer's jurisdiction, without a

warrant, where the officer "reasonably believes [the person] has

committed a felony."   Commonwealth v. Claiborne, 423 Mass. 275,

     6
       See Commonwealth v. Gorman, 288 Mass. 294, 296-297 (1934).
("Constables have common law power as peace officers to make
arrests without warrants in cases in which such arrests are
permitted by law").
                                                                   9


279 (1996).7   The broad power of arrest granted to police

officers as defined in G. L. c. 41, § 98, is essential to the

definition of police officer in G. L. c. 269, § 13A.    Although

the Legislature did not articulate the specific societal benefit

underlying the enactment of the G. L. c. 269, § 13A, we do not

go far afield in positing an obvious advantage in the

enforcement of the statute that we consider in our analysis.

Enforcement of the statute would minimize the likelihood that

the police may arrest an innocent person based on a false report

of a crime.    With this in mind, the definition of a police

officer for the purposes of G. L. c. 269, § 13A, logically

should include only police officers empowered to make an arrest

that may result in the harm that the statute is intended to

prevent.

     Applying the definition of police officer set forth in

G. L. c. 41, § 98, we conclude that a deputy sheriff is not a

police officer within the meaning of G. L. c. 269, § 13A.

Unlike police officers as defined in G. L. c. 41, § 98, deputy


     7
       In certain circumstances, police officers are also
empowered to make warrantless arrests outside the jurisdictional
boundaries of the government unit responsible for their
appointment. Specifically, a police officer may make
extraterritorial warrantless arrests where the officer is acting
in "fresh pursuit" of a person who committed "any offenses,
felony, or misdemeanor" within the officer's jurisdiction.
Commonwealth v. Grise, 398 Mass. 247, 249 (1986), citing G. L.
c. 41, § 98A.
                                                                    10


sheriffs are not empowered to make warrantless arrests for

crimes that occur outside of his or her view or presence.      Under

the common law, a deputy sheriff is considered a "peace

officer."   Commonwealth v. Howe, 405 Mass. 332, 334 (1989).      As

a "peace officer," a deputy sheriff has only limited authority

to make warrantless arrests.   See id.   See also Commonwealth v.

Baez, 42 Mass. App. Ct. 565, 569 n.6 (1997) (collecting statutes

granting deputy sheriffs authority to make arrests).   More

specifically, a deputy sheriff's warrantless arrest power is

limited to offenses involving a breach of the peace that occur

in the deputy sheriff's view or presence.    See Howe, supra.

Given this limitation, the warrantless arrests made by deputy

sheriffs are largely insulated from the risk of arresting an

innocent person based on a false report of a crime.

    We are persuaded that a deputy sheriff is not a police

officer for the purposes of G. L. c. 269, § 13A, for an

additional reason grounded in the statutory and common-law

powers of a deputy sheriff.    The source of a deputy sheriff's

powers and duties is in the common law and G. L. c. 37, §§ 1-26,

not G. L. c. 41, § 98.   Although a deputy sheriff may perform

certain police functions in the capacity of a "peace officer,"

Howe, 405 Mass. at 334, his or her duties center mainly in

nonpolice functions, including the service of process and the
                                                                   11


transport of prisoners or other persons in their custody.      G. L.

c. 37, §§ 11-13, 24.

     Our conclusion that the term "police officer" in § 13A,

does not include deputy sheriffs is buttressed by legislative

history of the statute's enactment.     The genesis of G. L.

c. 269, § 13A, is 1982 House Doc. No. 2602, "An Act to prohibit

the intentional making of false reports of crimes to police

officers and establishing a penalty therefore," which, along

with a similar measure, 1982 House Doc. No. 2594, "An Act

relative to making false reports to law enforcement

authorities,"8 was referred to the committee on criminal justice

and scheduled for public hearing.     See 1982 House J. at 2307.

Following the public hearing, both bills were reported out of

     8
       1982 House Doc. No. 2594, which would amend G. L. c. 268
by inserting § 6C, provided:

          "Any person who makes a report or intentionally causes
     the transmission of a report to law enforcement authorities
     of a crime or other incident within their official concern,
     when he knows that it did not occur; or any person who
     makes a report or purposely causes the transmission of a
     report to law enforcement authorities pretending to furnish
     information relating to an offense or other incident within
     their official concern when he knows that he has no such
     information or knows that the information is false may be
     punished by a fine of not more than $1,000 and imprisonment
     in the house of correction for not more than [two and one-
     half] years, or both. If personal injury results from such
     report or transmission of such report to anyone, the
     subject making such false report may be punished by a fine
     of not less than $1,000 and not more than $5,000 or by
     imprisonment in a [S]tate prison for not more than five
     years."
                                                                   12


the committee.   See id. at 2306, 2307.   Ultimately, however, the

more expansive 1982 House Doc. No. 2594, proscribing the making

of false report to "law enforcement authorities," failed and

only 1982 House Doc. No. 2602, proscribing the making of a false

report to "police officers," was enacted.     See 1982 House J. at

2307.

    Although the legislative record does not suggest the reason

for the failure of 1982 House Doc. No. 2594, we note that in the

enactment of the more limited 1982 House Doc. No. 2602, the

Legislature limited the scope of the law to "police officers"

rather than the broader category, "law enforcement authorities."

In addition, a November, 1981, opinion of the Attorney General,

published just months before the introduction of 1982 House Doc.

No. 2602, lends support to the proposition that the bill was

intended to prevent unnecessary diversions of police resources

to noncriminal activities and to prevent the arrest of innocent

persons in reliance on false information.     See Opinion of the

Attorney General, Rep. A.G., Pub. Doc. No. 12, at 120 (1982).

Our interpretation of G. L. c. 269, § 13A, to exclude deputy

sheriffs is consistent with these purposes.     As we have said, we

consider it more likely that, in protecting against the risk

that an innocent person will be arrested based on a false report

of a crime and investigations into noncriminal activity stemming

therefrom, the Legislature intended G. L. c. 269, § 13A, to
                                                                    13


apply only to police officers with broad authority to

investigate and arrest for an offense that may be the subject of

a false report.

     We address briefly the Commonwealth's arguments that (1)

because deputy sheriffs have general law enforcement powers,

including the power to arrest, and because some perform criminal

investigations in addition to their duties related to

correctional institutions, a deputy sheriff is a police officer

under G. L. c. 269, § 13A; and (2) the term "police officers" in

§ 13A should be interpreted broadly, as the Legislature has done

in G. L. c. 90, § 1, and G. L. c. 90C, § 1.

     First, although the Appeals Court has recognized that the

common-law and statutory powers of deputy sheriffs and police

officers are coextensive in certain respects, this proposition

does not undermine our conclusion that deputy sheriffs are not

police officers for the purposes of G. L. c. 269, § 13A.     See,

e.g., Sheriff of Middlesex County v. International Bhd. of

Correctional Officers, Local R1-193, 62 Mass. App. Ct. 830, 831-

832 (2005) (collecting cases noting that deputy sheriffs have

arrest authority in certain circumstances); Hollum v.

Contributory Retirement Appeal Bd., 53 Mass. App. Ct. 220, 221

(2001) ("Deputy sheriffs are police officers who may serve as

civil and criminal process servers or who may serve in a formal

law enforcement function at [a jail] and house of correction").
                                                                   14


These cases assumed that deputy sheriffs perform certain police

duties, but neither determined that sheriffs' and police

officers' duties are one and the same.

    Second, the definition of "police officer" in G. L. c. 90,

§ 1, and G. L. c. 90C, § 1, is of marginal utility in

interpreting the meaning of "police officer" as it is used in

G. L. c. 269, § 13A.   General Laws c. 269, § 13A, concerns a

subject matter that is vastly different from that of either

G. L. c. 90, § 1, which supplies definitions for the chapter of

our General Laws concerning motor vehicles and aircraft, or

G. L. c. 90C, § 1, which supplies definitions for the General

Laws concerning procedures for motor vehicle offenses.     Given

this difference in subject matter, we cannot assume that the

Legislature's motivations for defining "police officer" broadly

in G. L. c. 90, § 1, and G. L. c. 90C, § 1, apply equally to

G. L. c. 269, § 13A.   Cf. Wynton W., 459 Mass. at 747, quoting

Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184,

188-189 (1969) ("Where the Legislature uses the same words in

several sections which concern the same subject matter, the

words 'must be presumed to have been used with the same meaning

in each section'" [emphasis supplied]).   Even if we were to

consider the definitions of "police officer" in G. L. c. 90,

§ 1, and G. L. c. 90C, § 1, they demonstrate that where the

Legislature intends to define "police officer" expansively, it
                                                                     15


does so explicitly.    "We will not 'read into the statute a

provision which the Legislature did not see fit to put there.'"

Chin v. Merriot, 470 Mass. 527, 537 (2015), quoting Commissioner

of Correction, 446 Mass. at 126.

    The Commonwealth argues also that a narrow interpretation

would have "significant ramifications for other criminal

statutes" employing, yet not specifically defining, "police

officer."    We disagree.   Our holding is narrow and reaches no

further than G. L. c. 269, § 13A.     We are also not persuaded by

the Commonwealth's argument that a narrow interpretation of

"police officer" will lead to the absurd result that only

certain false reports are unlawful.     As explained supra, we

discern from the legislative record of the enactment of § 13A

that the Legislature did not intend to subject false reports of

crimes made to any law enforcement officer to criminal penalty.

Rather, it limited the statute's reach to those false reports of

crimes made specifically to police officers.

    c.    Rule of lenity.    Last, because the scope of "police

officer" in § 13A is unclear, the rule of lenity supports the

narrow interpretation of "police officer" that we have adopted

here.    "[W]e cannot interpret an ambiguous statute in a manner

that disadvantages a criminal defendant."     Commonwealth v.

Hamilton, 459 Mass. 422, 436 (2011).     See Commonwealth v.

Donovan, 395 Mass 20, 29 (1985) ("We have held . . . that
                                                                16


criminal statutes must be construed strictly against the

Commonwealth.   . . . [A]mbiguity concerning the ambit of

criminal statutes should be resolved in favor of lenity"

[quotations and citations omitted]).

    3.   Conclusion.   For the reasons explained above, a deputy

sheriff is not a "police officer" for purposes of G. L. c. 269,

§ 13A.   Thus, we reverse the defendant's conviction, and a

judgment of not guilty shall enter.

                                    So ordered.
