NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-621

COMMONWEALTH

vs.

ANDREW BROWN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A two-count complaint issued from the Roxbury Division of 

the Boston Municipal Court charging the defendant, Andrew Brown, 

with (1) violation of an abuse prevention order (G. L. c. 209A, 

§ 7), and (2) stalking in violation of an abuse prevention order 

(G. L. c. 265, § 43 [b]). On the first count, a jury returned a 

guilty verdict, and on the second count returned a guilty 

verdict of the lesser included offense of violation of an abuse 

prevention order. The trial judge imposed concurrent suspended 

sentences of fifteen months in the house of correction. Three 

months later, leaving the conviction of the first count 

undisturbed, the judge vacated the conviction of the second 

count after concluding that the absence of a specific unanimity 
2

instruction created a substantial risk of a miscarriage of 

justice. The judge also stated that the Commonwealth could 

retry the defendant on that count.

The defendant filed a direct appeal from his convictions 

and filed a petition for interlocutory review of the judge's 

postjudgment decision, raising a double jeopardy claim, with a 

single justice of the Supreme Judicial Court pursuant to G. L. 

c. 211, § 3. Allowing the defendant's petition, the single 

justice transferred the case to this court for a determination 

of the "defendant's claim that any retrial on count two of the 

complaint is barred by principles of double jeopardy." Before 

us now is the consolidated direct appeal and interlocutory 

appeal. For the reasons set forth herein, we affirm the 

defendant's conviction of the first count of the complaint and 

conclude that the defendant cannot be retried on the second 

count. We therefore reverse the judgment on count two of the 

complaint, set aside the verdict, and enter judgment for the 

defendant on that count.

Instruction on lesser included offense. Without any 

objection by the defense, the trial judge provided a lesser 

included offense instruction on the second count that charged 

aggravated stalking. Consistent with the jury instruction, the 

verdict slip gave jurors the option under the second count of 

convicting the defendant of aggravated stalking or the lesser 
3

included 209A violation. On appeal, the defendant contends that 

this instruction should not have been provided. We discern no 

error and no "substantial risk of a miscarriage of justice." 

Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). See 

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (where defendant 

did not object at trial appellate review limited to whether 

there was any error, and if so, whether that error created 

substantial risk of a miscarriage of justice).

Violation of a 209A order is a lesser included offense of 

aggravated stalking. Edge v. Commonwealth, 451 Mass. 74, 77 

(2008). "[W]hen the evidence permits a finding of a lesser 

included offense, a judge must, upon request, instruct the jury 

on the possibility of conviction of the lesser crime" (citation 

omitted). Commonwealth v. Roberts, 407 Mass. 731, 737 (1990). 

"This requirement applies to requests made by the Commonwealth." 

Commonwealth v. Taylor, 486 Mass. 469, 485 (2020). The evidence 

showed that the 209A order issued on July 20, 2021, and required 

the defendant to refrain from abusing the victim, avoid 

contacting the victim, and stay at least one hundred yards away 

from the victim. While that order was in effect, on five 

separate days the defendant engaged in at least five discrete 

acts that the jury could consider as violations of the 209A 

order, and a combination of these acts could constitute 

aggravated stalking. Jurors could rationally acquit the 
4

defendant of stalking and still convict him of violating the 

209A order. Thus, the judge did not err in providing an 

instruction on a lesser included offense.

Specific Unanimity. We disagree with the defendant's 

contention that the absence of a specific unanimity instruction 

requires a new trial. As previously noted, the 209A order 

required the defendant to refrain from abuse, to have no contact 

with the victim, and to stay away from the victim. The evidence 

at trial included a text message that the defendant sent to the 

victim on October 20, 2021. In an effort to prove a pattern of 

conduct for the aggravated stalking charge, the Commonwealth 

attempted to link the October 20 text message to four prior 

incidents where the defendant made some form of contact or came 

within one hundred yards of the victim, on October 11, 14, 15, 

and 18. For the first time on appeal, the defendant contends 

that the trial judge should have provided, sua sponte, a 

specific unanimity instruction that required jurors to agree on 

one of these incidents for the 209A violation that was common to 

both counts of the complaint. We discern no "substantial risk 

of a miscarriage of justice." Freeman, 352 Mass. at 564.

The judge repeatedly instructed jurors on the need for a 

unanimous verdict: "The presumption of innocence stays with the 

defendant unless and until the evidence convinces you 

unanimously as a jury that the defendant is guilty beyond a 
5

reasonable doubt. . . . Your verdict, whether it is guilty or 

not guilty, must be unanimous." At the end of the instructions, 

when referencing the verdict slips, the judge once again 

reminded jurors of their obligation to "arrive at a unanimous 

decision." These repeated instructions, especially when made in 

reference to the verdict slips, implicitly called for jurors to 

agree unanimously as to each incident reflected in the verdict. 

Commonwealth v. Lemar, 22 Mass. App. Ct. 170, 172 (1986).

The absence of an additional, explicit instruction --

requiring unanimity as to at least one of the five incidents --

did not create a substantial risk of a miscarriage of justice. 

"[W]hen a defendant does not request a specific unanimity 

instruction nor timely object to its absence, 'no substantial 

risk of a miscarriage of justice' exists where 'the evidence 

satisfies each element of the statute and is sufficient to 

defeat a motion for a required finding of not guilty.'" 

Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003), 

quoting Commonwealth v. Keevan, 400 Mass. 557, 567 (1987). See, 

e.g., Lemar, 22 Mass. App. Ct. at 173 (no substantial risk of a 

miscarriage of justice from absence of specific unanimity 

instruction where indecent assault and battery charge supported 

by evidence of three incidents).

Here, viewing the evidence in a light most favorable to the 

Commonwealth, any one of the five incidents in October allowed 
6

jurors to find beyond a reasonable doubt that the defendant 

knowingly violated an existing abuse prevention order under 

G. L. c. 209A, § 7. Commonwealth v. Latimore, 378 Mass. 671, 

676-678 (1979). That order, extended in the defendant's 

presence and in existence when the incidents occurred, 

prohibited the defendant from contacting the victim: "YOU ARE 

ORDERED NOT TO CONTACT THE PLAINTIFF, in person, by telephone, 

in writing, electronically or otherwise, either directly or 

through someone else, and to stay at least 100 yards from the 

Plaintiff even if the Plaintiff seems to allow or request 

contact." Despite this order, the evidence showed that the 

defendant intentionally positioned his car in view of the victim 

and "revved" the engine (October 11), argued with the victim on 

the courthouse steps (October 14), called the victim on a cell 

phone (October 15), parked behind the victim's car, within 100 

feet of where the victim stood, and opened a door of her car 

(October 18), and texted the victim (October 20). Given that 

contact is "broadly" interpreted as well as the fact that there 

are "many ways to achieve a communication," Commonwealth v. 

Basile, 47 Mass. App. Ct. 918, 919 (1999), jurors could readily 

find a violation of the 209A order through any of the October 

incidents. "Accordingly, it does not appear likely that the 

jury verdict would have been different even if the judge had 
7

given the specific instruction now requested by the defendant." 

Commonwealth v. Comtois, 399 Mass. 668, 677 (1987).

Duplicative convictions. After trial, the judge vacated 

the conviction of the second count because he believed that the 

absence of a specific unanimity instruction created a 

substantial risk of a miscarriage of justice. We conclude that 

the conviction of the second count must be reversed, and for a 

different reason –- the conviction is duplicative of the 

conviction of the first count. Consequently, the defendant 

cannot be retried on the second count or any portion thereof.

The complaint identified the date of count one as October 

20, 2021, and of count two as "various dates between On" October 

20 and 21, 2021. A bill of particulars identified seven 

additional dates involving incidents related to the stalking 

count. As set forth in detail above, the evidence at trial 

included incidents from four of the seven dates noted in the 

bill of particulars (October 11, 14, 15, and 18) as well as the 

date identified in the complaint (October 20). Neither the 

prosecutor's opening statement nor closing argument attempted to 

link any of the evidence to a particular count of the complaint. 

At first glance, the bar against duplicative convictions and 

double jeopardy would not seem to apply because we are dealing 

with multiple discrete acts, any one of which could 

theoretically be the basis for a jury verdict.
8

We faced a similar situation in Commonwealth v. Mahoney, 68 

Mass. App. Ct. 561 (2007). In that case, a jury convicted the 

defendant of embezzlement and larceny of $44,000 through a 

series of thefts over a year and one-half. Id. at 561, 566. 

The Commonwealth argued that the convictions were not 

duplicative because the convictions were derived from evidence 

of separate and discrete acts of thefts, and jurors could have 

found one of the thefts was a larceny while another was 

embezzlement. Id. at 566. We noted, "The problem with the 

Commonwealth's contention is that the thefts in this case were 

neither charged nor tried in this manner." Id. The 

Commonwealth did not charge the various thefts as separate 

crimes, and the judge did not provide a specific unanimity 

instruction. Id. Despite the various dates of the thefts, the 

"convictions arose from the same conduct on the part of the 

defendant." Id. As such, the convictions were duplicative.

We reach a similar result here. In the charging 

instrument, the Commonwealth never attempted to distinguish the 

defendant's discrete acts in violation of the 209A order as 

separate crimes. At trial, the Commonwealth never attempted to 

link the evidence to a particular count of the complaint. The 

jury instructions also drew no distinctions and did not require 

jurors to agree unanimously that any particular act constituted 

a 209A violation. Given these circumstances, we believe that 
9

the defendant's convictions effectively "arose from the same 

conduct on the part of the defendant" and are duplicative. 

Mahoney, 68 Mass. App. Ct. at 566.

Resentencing. In a case such as this where the first count 

(209A violation) is a lesser included offense of the second 

count (aggravated stalking), the proper approach would have been 

to "submit the [two] charges to the jury and, if guilty verdicts 

were returned on more than one, to dismiss the less serious 

charge or charges prior to entering a judgment of conviction and 

sentencing on the most serious crime." Commonwealth v. Jones, 

382 Mass. 387, 394-395 (1981). That did not happen here; 

instead, in a postconviction hearing, the trial judge "vacated" 

the judgment on the second count of the complaint, and he 

considered, but declined, to impose a different sentence on the 

conviction of the first count. In light of the judge's 

consideration of the sentence following action on the conviction 

that we now deem duplicative, we are satisfied that a further 

sentencing hearing is not required in these circumstances.

The judgment on count one of 

the complaint is affirmed; 

the judgment on count two 

of the complaint is 

reversed, the verdict is 

set aside, and judgment for 

the defendant shall enter 

on that count.
10

By the Court (Neyman, 

Hershfang & Hodgens, JJ.1),

Clerk

Entered: August 14, 2024.

1 The panelists are listed in order of seniority.