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-930

COMMONWEALTH

vs.

ALPHONSO J. SINCLAIR, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial, the defendant was convicted of 

violating an abuse prevention order, G. L. c. 209A, § 7, by 

making an "auto rejected" call to the victim's phone. On 

appeal, he argues that (1) the admission of a screenshot image 

of the victim's call log resulted in a substantial risk of a 

miscarriage of justice, (2) trial counsel's failure to object to 

the screenshot evidence amounted to ineffective assistance of 

counsel, and (3) there was insufficient evidence to support his 

conviction. We affirm.

Background. The defendant and the victim married in 2014 

and had two children. An abuse prevention order was entered 

against the defendant on February 11, 2019, and was extended 
2

several times until July 17, 2022. The no contact provision in 

the order barred attempts to contact the victim "in person, by 

telephone, in writing, electronically or otherwise, either 

directly or through someone else." The parties' divorce was 

finalized in August 2021. Between December 4, 2020, and January 

25, 2021, four complaints were issued charging the defendant 

with multiple violations of the abuse prevention order.

The defendant's jury-waived trial began on November 16, 

2022. The victim testified that she had used the same phone 

number for more than ten years and that, during her relationship 

with the defendant, she received hundreds of calls and texts 

from his phone. Without objection by the defendant, the judge 

admitted into evidence a printed screenshot that the victim took 

from her phone and provided to the police. The screenshot 

included a call log that showed an "auto rejected" call from the 

defendant’s phone on April 14, 2020. It also showed that two 

"Duo video calls," described by the victim as "an Android 

response to FaceTime," were attempted from the defendant's phone 

the next day.1 The defendant did not testify or call any 

witnesses. After denying the defendant's motion for a required 

1 The log listed the "Duo video calls" as having been made 

at certain times "Today," and next to them "April 15" was 

written in hand by a detective to whom, the victim testified, 

she sent the screenshot that same day.
3

finding of not guilty, the judge found him guilty of one 

violation of the abuse prevention order, based on the "auto

rejected" call, and acquitted him of the remaining charges.

Discussion. 1. Authentication of the screenshot exhibit. 

The defendant argues that the screenshot showing the "auto

rejected" telephone call on April 14, 2020, should not have been 

admitted "for lack of evidence that the defendant was the 

individual who actually made the call[]." Because the defendant 

did not object to the admission of this screenshot, we review to 

determine whether any potential error created a substantial risk 

of a miscarriage of justice. Commonwealth v. Almele, 474 Mass. 

1017, 1019 (2016). That question turns on whether we have "a 

serious doubt whether the result of the trial might have been 

different had the error not been made." Commonwealth v. LeFave, 

430 Mass. 169, 174 (1999). We discern no such error here.

The screenshot is digital evidence. See Commonwealth v. 

Meola, 95 Mass. App. Ct. 303, 307-308 (2019). See also Mass. 

G. Evid. §§ 901(b)(11), 1119(a)(1) (2024). "[B]efore admitting 

an electronic communication in evidence, a judge must determine 

whether sufficient evidence exists 'for a reasonable jury to 

find by a preponderance of the evidence that the defendant 

authored' the communication." Commonwealth v. Oppenheim, 86 

Mass. App. Ct. 359, 366 (2014), quoting Commonwealth v. Purdy, 

459 Mass. 442, 447 (2011). See Mass. G. Evid. §§ 901(a), 
4

1119(b). "Authenticity is usually proved by testimony of a 

witness either '(1) that the thing is what its proponent 

represents it to be, or (2) that circumstances exist which imply 

that the thing is what its proponent represents it to be.'" 

Commonwealth v. Williams, 456 Mass. 857, 868 (2010), quoting 

Commonwealth v. Nardi, 452 Mass. 379, 396 (2008).

Here, the victim testified that the call log came from her 

cell phone. She had used the same phone number for over ten 

years, including when she was married to the defendant, and she 

recognized the number that made the "auto rejected" call as the 

defendant's. The log also showed that the next day two calls 

were made from that number to the victim's phone using the "Duo 

video call" Android application, and the victim testified that 

both she and the defendant had Android phones. These facts were 

adequate to allow a reasonable factfinder to find by a 

preponderance of the evidence that the defendant made the "auto

rejected" call. See Commonwealth v. Gonsalves, 99 Mass. App. 

Ct. 638, 642 (2021) (finding of authenticity supported by 

victim's identification of cell phone number as defendant's); 

Commonwealth v. Alden, 93 Mass. App. Ct. 438, 440-441 (2018), 

cert. denied, 139 S. Ct. 2010 (2019) (victim's "prior 

relationship with the defendant and her use of the telephone 

number to communicate with him over a significant period of 
5

time" provided confirming circumstances that defendant sent 

threatening text messages from that phone).

The defendant's reliance on Williams, 456 Mass. at 868-869, 

is misplaced because that case involved the authenticity of

messages sent from an individual's MySpace Web page. The 

Supreme Judicial Court analogized the messages to "an incoming 

[telephone] call from a person claiming to be 'A,' without 

more," which it explained would be "insufficient evidence to 

admit the call as a conversation with 'A.'" Id. at 869. Here, 

by contrast, the victim's familiarity with the defendant's phone 

number, her prior receipt of hundreds of texts and calls from 

the defendant using that number, and the use of that number the 

next day to make two "Duo video calls" to the victim were

confirming circumstances that adequately connected the defendant 

to the making of the "auto rejected" call. See Alden, 93 Mass. 

App. Ct. at 441.

Accordingly, the judge did not abuse his discretion in 

admitting the screenshot into evidence. See Meola, 95 Mass. 

App. Ct. at 309. Because the defendant was acquitted of the 

other charges in the case, there can be no substantial risk of a 

miscarriage of justice in the admission of other screenshots

showing text messages from phone numbers the victim did not 

recognize. See Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 

923 (2004) (admission of evidence was "obviously not unduly 
6

prejudicial given the defendant's acquittal on the charge to 

which it most directly related").

2. Ineffective assistance of counsel. We reject for 

similar reasons the defendant's argument that his trial 

counsel's failure to object to the admission of the screenshot 

amounted to ineffective assistance. "To prevail on a claim of 

ineffective assistance of counsel, . . . a defendant also must 

show that counsel's deficiency resulted in prejudice, . . . 

which, in the circumstances of counsel's failure to object to an 

error at trial, is essentially the same as the substantial risk 

standard we apply to unpreserved errors." Commonwealth v. 

LaChance, 469 Mass. 854, 858 (2014), cert. denied, 577 U.S. 922 

(2015), citing Commonwealth v. Azar, 435 Mass. 675, 686-687 

(2002). Because no substantial risk of a miscarriage of justice 

resulted from the admission of the screenshot into evidence, 

there is no basis for an ineffective assistance claim based on 

counsel's failure to object to it. See Commonwealth v. Curtis, 

417 Mass. 619, 624 n.4 (1994); Commonwealth v. Farnsworth, 76 

Mass. App. Ct. 87, 100 (2010).

3. Sufficiency of the evidence. Lastly, the defendant 

argues that the judge erred in denying his motion for a required 

finding of not guilty. When reviewing a sufficiency of the 

evidence claim, we determine whether "the evidence, including 

all reasonable and possible inferences, was sufficient to enable 
7

any rational trier of fact to 'infer the existence of the 

essential elements of the crime charged.'" Commonwealth v. 

Rarick, 87 Mass. App. Ct. 349, 351 (2015), quoting Commonwealth

v. Latimore, 378 Mass. 671, 677 (1979). The essential elements 

of violating an abuse prevention order under G. L. c. 209A, § 7,

are (1) that a court issued an abuse prevention order; (2) the 

order was in effect on the date of the alleged violation; 

(3) the defendant knew the terms of the order were in effect; 

and (4) the defendant violated a term of the order. 

Commonwealth v. Shea, 467 Mass. 788, 794 (2014).

Here, it is undisputed that the abuse prevention order was 

in effect and prohibited the defendant from contacting the 

victim, including electronically and by telephone. The 

defendant knew about the order because he had attended multiple 

extension hearings. The only element disputed at trial was 

whether the defendant violated the order by attempting to call 

the victim on April 14, 2020. "Our cases generally interpret 

'contact' broadly; there are many ways to achieve a 

communication." Commonwealth v. Basile, 47 Mass. App. Ct. 918, 

919 (1999). Thus, a rejected phone call or other contact can 

violate an abuse prevention order even if there is no verbal 

communication between the parties. See Commonwealth v. Russell, 

46 Mass. App. Ct. 307, 309-311 (1999); Commonwealth v. Butler, 

40 Mass. App. Ct. 906, 907 (1996). Although the defendant 
8

argues that the Commonwealth did not prove that the "auto

rejected" call was not made accidentally, accident is an 

affirmative defense that must be "fairly raised" before the 

judge will require the Commonwealth to disprove it beyond a 

reasonable doubt. Commonwealth v. Podkowka, 445 Mass. 692, 699 

(2006). The defendant did not present any evidence regarding 

the possibility of an accident at trial, but rather only 

speculated during closing argument that the "auto rejected" call 

might have been "a mistake" or "butt dial." His motion for a 

required finding of not guilty was properly denied.

Judgment affirmed.

By the Court (Sacks, 

Ditkoff & Toone, JJ.2),

Clerk

Entered: September 24, 2024.

2 The panelists are listed in order of seniority.