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17-P-623 Appeals Court

COMMONWEALTH vs. GEOFFREY F. WATSON.

No. 17-P-623.

Suffolk. February 16, 2018. - October 17, 2018.

Present: Wolohojian, Milkey, & Englander, JJ.

Abuse Prevention. Protective Order. Notice. Constitutional 

Law, Confrontation of witnesses. Practice, Criminal, 

Confrontation of witnesses. Words, "Stay away."

Complaint received and sworn to in the Roxbury Division of 

the Boston Municipal Court Department on September 22, 2015.

The case was heard by David Weingarten, J.

Kevin P. DeMello for the defendant.

Ioana Moldovan (Helle Sachse, Assistant District Attorney, 

also present) for the Commonwealth.

ENGLANDER, J. After a jury-waived trial in Boston 

Municipal Court, the defendant was convicted of violating that 

portion of an abuse prevention order that required him to "stay 

away from the plaintiff's residence." On appeal, the defendant 

argues, among other things, that the evidence was insufficient 
2

to support a guilty finding, because there was no evidence that 

he entered the property on which the residence was located, or 

otherwise intruded on it. Although it is true that the defendant 

did not cross the property boundary or otherwise physically 

intrude onto the property, we conclude that the evidence was 

nonetheless sufficient to prove beyond a reasonable doubt that 

he failed to "stay away" from the residence. We reach this 

conclusion because the phrase "stay away," although tethered to 

specific premises, is not limited solely to physical intrusion 

on them. On this basis, and because we conclude that the 

defendant's remaining arguments are without merit, we affirm.

Background. On August 25, 2015, E.C. obtained an ex parte 

abuse protection order against the defendant that subsequently 

was extended. The operative terms of the order are set forth in 

three numbered paragraphs. Paragraph 1 ordered the defendant 

"NOT TO ABUSE [E.C.] by harming, threatening or attempting to 

harm [her] physically or by placing [her] in fear of imminent 

serious physical harm, or by using force, threat or duress to 

make [her] engage in sexual relations." Paragraph 2 included 

two prohibitions. First, it ordered the defendant "NOT TO 

CONTACT [E.C.], in person, by telephone, in writing, 

electronically or otherwise, either directly or through someone 

else." Second, it ordered the defendant "to stay at least 100 

yards away from [E.C.]." Finally, paragraph 3 ordered the 
3

defendant "TO IMMEDIATELY LEAVE AND STAY AWAY FROM [E.C.'s] 

RESIDENCE, except as permitted in [two subsequent paragraphs 

that do not apply], located at [a specified street address]." 

Because E.C. lived in a multifamily dwelling, the order went on 

to specify that the defendant was required "to immediately leave 

and remain away from the entire apartment building or other 

multiple family dwelling in which [her] residence is located."1

As the parties informed the judge at the commencement of 

the trial, the Commonwealth made no contention that the 

defendant had violated paragraphs 1 and 2 of the order, that is, 

by abusing, contacting, or coming within one hundred yards of 

E.C. Instead, the Commonwealth's sole contention was that the 

defendant violated paragraph 3 of the order by not staying "away 

from the entire apartment building . . . in which [E.C.'s] 

residence was located."

E.C. did not testify at trial. The Commonwealth's sole 

witness was a police officer who drove to E.C.'s address at 

approximately 10:30 A.M. on September 22, 2015, in response to a 

"radio call." Other than the fact that the officer learned of

 

1 Paragraph 3 also required the defendant "(a) to surrender 

any keys to [the] residence to the [p]olice; (b) not to damage 

any belongings of [E.C.] or any other occupant; (c) not to shut 

off or cause to be shut off any utilities or mail delivery to 

[E.C.]; and (d) not to interfere in any way with [E.C.'s] right 

to possess that residence, except by appropriate legal 

proceedings." These additional requirements are not implicated 

in this case.
4

E.C.'s address from the radio call, virtually nothing about the 

content of that call was admitted in evidence.2

After the officer received the radio call, he arrived at 

E.C.'s address "within [five] minutes may be." Once there, he 

observed the defendant standing on the sidewalk outside the 

property. He was with other individuals, "like a group of 

friends talking." Separating the sidewalk from the property on 

which the building was located was a wrought iron fence that was 

"about knee high." At no point did the officer see the 

defendant inside the fence, or on the walkway or stairs leading 

to the building. According to the officer, the point on the 

sidewalk on which the defendant was standing was approximately 

twenty to twenty-five feet from the front door of the apartment 

building in which E.C. lived.3

At the close of the evidence, the defendant moved for a 

required finding of not guilty, arguing, among other things, 

that there was no evidence that he violated the requirement that 

he stay away from E.C.'s residence, and that that provision was 

 

2 The officer was allowed to testify that the call provided 

him a description of a man in a plaid shirt, although this was 

admitted for the sole purpose of explaining why the officer 

approached the defendant when he arrived at the scene.

3 On cross-examination, the officer stated that he believed 

the defendant was "about [twenty-five] to [thirty] feet" away 

from the front door. Whether the defendant was twenty to 

twenty-five feet away, or twenty-five to thirty feet away, is 

not material.
5

void for vagueness. Acknowledging that the order did not 

require the defendant to stay a particular distance away from 

the residence, the prosecutor argued that the judge could infer 

that the defendant was required to stay a "reasonable" distance 

away. She also suggested that a reasonable distance would be

one hundred yards (to make it congruent with the express 

requirement of the order that the defendant stay one hundred 

yards away from E.C.).

The judge rejected the Commonwealth's argument that the 

order required the defendant to stay one hundred yards away from 

the residence, and he indicated that he thought the defendant's 

argument had some force. Nevertheless, the judge ultimately 

found the evidence sufficient, stating his view that "as a 

matter of law," being twenty-five feet away from the building --

which the judge characterized as "just on the outside of the 

property" -- was enough.

Discussion. 1. Sufficiency of the evidence. In reviewing 

the sufficiency of the evidence, we consider "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." 

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting 

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Here, what 

the evidence showed is not in material dispute. Rather, the 
6

determinative question is whether that evidence established that 

the defendant violated the requirement that he stay away from 

E.C.'s residence, which the order stated included "the entire 

apartment building" in which her residence was located.

We do not write on a clean slate. We first addressed what 

it means to be required to "stay away from" an identified 

residence or workplace more than two decades ago. See 

Commonwealth v. O'Shea, 41 Mass. App. Ct. 115, 116 (1996). 

There, an individual had obtained a G. L. c. 209A order 

requiring that the defendant stay away from her workplace. The 

defendant was charged with violating that provision after he had 

been observed going into and out of a commercial establishment 

separated by a side street from the property on which her place 

of work was located. Id. at 117. We rejected the defendant's 

contention that the scope of the requirement was limited to the 

building in question. Instead, we concluded that it "extends to 

all of the property on which the workplace is located[,]

including the adjacent parking lot." Id. at 118. We noted that 

this interpretation "create[s] a safe haven for [the protected 

person] at her workplace, a place 'in which no further abuse 

need be feared.'" Id., quoting Commonwealth v. Gordon, 407 

Mass. 340, 347 (1990).
7

At the same time, in O'Shea, we also rejected the 

Commonwealth's argument that being in the mere "vicinity" of the 

workplace was enough. As we explained,

"The word 'vicinity,' according to Black's Law Dictionary 

(6th ed. 1990), means, 'Quality or state of being near, or 

not remote; nearness; propinquity; proximity; a region 

about, near or adjacent . . . .' The word is so imprecise 

that if we hold that the 'stay away' order means stay away 

from the 'vicinity' of the workplace, the order would fail 

to meet the requirement that it must be clear."

O'Shea, 41 Mass. App. Ct. at 118. Since the defendant in O'Shea

had not "entered the area of the workplace," id., we concluded 

that he therefore could not be found guilty of violating the 

order. Id. at 118-119.4

In Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785, 787 

& n.3 (2003), the defendant did not enter the workplace from 

which he was required to stay away. However, after stopping his 

 

4 In O'Shea, 41 Mass. App. Ct. at 118, we commented that 

someone charged with violating a G. L. c. 209A order not only 

must be aware of the order's existence but also must have 

"clearly and intentionally disobeyed that order in circumstances 

in which he was able to obey it." The Supreme Judicial Court 

subsequently abrogated that pronouncement. See Commonwealth v. 

Delaney, 425 Mass. 587, 597 n.9 (1997), cert. denied, 522 U.S. 

1058 (1998). As that court held, one can violate an order 

issued pursuant to G. L. c. 209A without specifically intending 

to do so, because that statute "requires no more knowledge than 

that the defendant knew of the order." Id. at 596. However, 

O'Shea otherwise remains good law on the proposition that one 

generally cannot be convicted for having violated an order 

merely by being in the vicinity of the property on which the 

protected residence is located. See Commonwealth v. 

Habenstreit, 57 Mass. App. Ct. 785, 787 & n.3 (2003) (citing 

O'Shea post-Delaney).
8

truck twenty to forty feet away from the workplace, he honked 

his horn, shouted obscenities, and made a threatening gesture to 

those in the workplace. Id. at 786. Concluding that, in this 

manner, the defendant had directly intruded into the workplace, 

we held that he could be found guilty of violating a stay-away 

order even though he had not crossed the property boundary. Id. 

at 787.

Taken together, O'Shea and Habenstreit thus recognize two 

ways that someone can violate an order to stay away from a 

workplace or residence: (1) entering the property on which the 

workplace or residence is located, or (2) taking actions that 

directly intrude on the workplace or residence. Intrusion in 

the latter situation does not require physical encroachment on 

the property. Rather, it is sufficient to take actions in close 

proximity to the property that have a direct impact inside the 

property identified in the stay-away order.

In the case before us, the Commonwealth presented no 

evidence that the defendant violated the order in either of 

these two ways: there is nothing to suggest that he went onto 

the property on which E.C.'s apartment building was located, and 

there is no evidence that he was doing anything outside that

property other than talking with friends. The question then is 

whether O'Shea and Habenstreit establish the only circumstances 

under which a defendant can be found to have violated a stay-
9

away order, or whether the phrase "stay away from the 

plaintiff's residence" also encompasses some other 

circumstances.

The word "away" denotes distance -- a distance the 

defendant must be "from the residence," but the word "away" does 

not give rise to a boundary that is mathematically precise.5 

Instead, mindful of the purpose of this aspect of c. 209A 

orders, we conclude that a defendant may also be found to have 

failed to "stay away" where, although outside the property 

boundary, he nonetheless has positioned himself sufficiently

proximate to it that he would be able to abuse or to contact the 

plaintiff, in the event that the plaintiff were on the property, 

or entering or leaving it.6 See Commonwealth v. Goldman, 94

Mass. App. Ct. , (2018); Commonwealth v. Telcinord, 94 

Mass. App. Ct. , (2018). Compare State v. Williams, 226 

N.C. App. 393, 410 (2013) ("Certainly the order must mean that 

defendant could not be so close . . . that he would be able to 

observe her, speak to her, or intimidate her in any way"). We

 

5 In this case we are construing the c. 209A order, which 

requires the defendant to "stay away from the plaintiff's 

residence." The statute, c. 209A, uses the term "remain away." 

For purposes of construing "away" we perceive no difference 

between the terms.

6 The plaintiff need not be present for a violation to 

occur. We use the terms "abuse" and "contact" as they are 

already defined in the order and the case law.
10

reach this conclusion based not only on the common understanding 

of the phrase "stay away" but also on its meaning within the 

specific framework and design of the abuse prevention order --

to provide a "safe haven" "in which no further abuse need be 

feared." Gordon, 407 Mass. at 347. O'Shea, 41 Mass. App. Ct. 

at 118. We would fail to serve this basic purpose were we to 

adopt a standard that allowed a defendant to position him or 

herself immediately outside the property boundary, or to stand 

in the plaintiff's path, such that the plaintiff was fearful to 

leave or return home.7 The standard we have articulated has 

limits; it continues to be tethered to the property boundary,

and to places proximate to it.8 Cf. Commonwealth v. Forbes, 86 

Mass. App. Ct. 197, 201 (2014) (rejecting textual interpretation 

that encompassed "a mathematical precision that was never 

intended"). The standard thus fulfils the purpose of the 

statute, while still providing a defendant fair notice of what 

conduct would violate the order. See, e.g., Commonwealth v. 

 

7 We recognize that the problem is partially ameliorated by 

the existence of the other provisions in abuse prevention orders 

prohibiting a defendant from abusing, contacting, or coming 

within a specific distance of the protected party. However, as 

a practical matter, enforcing those provisions typically 

requires the testimony of domestic abuse victims, who are often 

reluctant to face their abusers.

8 The standard accordingly is consistent with our holding in 

O'Shea, that merely being in the "vicinity" of the premises is 

not sufficient to violate the "stay-away" provision.
11

McGhee, 472 Mass. 405, 414 (2015) (judicial construction can 

alleviate vagueness concerns).

We turn then to applying that standard here. As noted, the 

defendant had placed himself immediately outside the property 

boundary and was there long enough to be observed by the person 

who called the police, and the defendant remained there until 

the officer arrived five minutes later. This evidence was 

sufficient to allow the judge to find that the defendant

positioned himself sufficiently proximate to the protected 

party's residence that he would have been able to contact or to 

abuse her. There accordingly was sufficient evidence to find a 

violation of the order.9

2. The notice issue. The defendant next argues that the 

Commonwealth failed to prove that he had notice of the c. 209A

order prior to his violation of it on September 22, 2015. The 

relevant facts are that the order was initially entered ex parte 

on August 25, 2015, and the court scheduled an extension hearing 

for September 4, 2015. There were several efforts to serve the 

defendant with the temporary order at his home address over the 

 

9 We also reject the defendant's contention that the order 

was unconstitutionally vague as applied to the facts here, 

because it did not give him sufficient notice that his conduct 

was prohibited. The words "stay away" gave sufficiently clear 

notice that the defendant could not stand immediately outside 

the property boundary. See Commonwealth v. Coppinger, 86 Mass. 

App. Ct. 234, 239 (2014); Commonwealth v. Forbes, 86 Mass. App. 

Ct. at 201.
12

several days between August 25 and September 4, none of which 

succeeded. The hearing went forward on September 4, 2015,

without the defendant present, at which the order was extended 

until September 2, 2016.

The defendant was thereafter served in hand while present 

in court on September 11, 2015. This service was established at 

trial by the court's docket sheet, which showed that the 

defendant was served with a copy of the c. 209A order by a court 

officer, in the court house.

The defendant claims that the docket sheet was inadequate 

evidence of service, and that in any event reliance upon it to 

prove notice violated the confrontation clause. We disagree. 

Our cases establish that a court may take judicial notice of its 

docket sheet, and that the docket sheet is prima facie evidence 

of the events recorded therein. See, e.g., Jarosz v. Palmer, 

436 Mass. 526, 530 (2002); Commonwealth v. Reddy, 74 Mass. App. 

Ct. 304, 311 (2009); Commonwealth v. Podoprigora, 46 Mass. App. 

Ct. 928, 929 (1999). See also Brodin & Avery, Massachusetts 

Evidence § 2.8.1 (2018). As such, it is prima facie evidence 

that the defendant was served with the c. 209A order on 

September 11, 2015.

Moreover, there is no confrontation clause problem in 

relying on the docket sheet to prove notice here. Just 

recently, in Commonwealth v. McEvoy, 93 Mass. App. Ct. 308, 311-
13

312 (2018), we explained that the Commonwealth could rely on the 

records of the registry of motor vehicles to establish that a 

criminal defendant had received notice that his driver's license 

had been suspended. We explained that the registry records were 

not "testimonial," for confrontation clause purposes, because 

the records were "maintained in the normal course of business," 

and because the records were created with "no particular 

prosecutorial use in mind." Id. at 315-316 (quotation omitted). 

The same is true of the docket sheet here, which is maintained 

in the normal course of court business. See Commonwealth v. 

Shangkuan, 78 Mass. App. Ct. 827, 831-836 (2011) (return of 

service evidencing service on defendant out-of-State was 

properly admitted in c. 209A case). Notably, in concluding that 

there was no confrontation clause violation, the McEvoy court 

also rejected the argument, raised here as well, that the 

government record could not be used to prove notice where notice 

was "an element of the offense." McEvoy, supra at 316 & n.6. 

Likewise, here, the use of a nontestimonial government record 

for purposes of proving notice to the defendant was acceptable.10

 

10 In McEvoy, 93 Mass. App. Ct. at 316, this court assumed, 

without deciding, that notice of the license suspension was an 

element of the offense. In light of the holding in McEvoy, we 

similarly do not decide whether notice qualifies as an "element" 

here.
14

Finally, the defendant raises a related argument -- that 

the c. 209A order itself was not valid because he did not 

receive proper notice and an opportunity to be heard before it

issued. It is true that the Commonwealth did not prove that the 

defendant had received notice prior to the issuance of either 

the August 25, 2015, or the September 4, 2015, order. The case 

law establishes, however, that a conviction of violation of a 

c. 209A order is valid as long as the defendant received actual 

notice of the order prior to the alleged violation. See 

Commonwealth v. Delaney, 425 Mass. 587, 591-593 (1997), cert. 

denied, 522 U.S. 1058 (1988) (defendant had actual knowledge of 

order, and opportunity to have order vacated, prior to time of 

violation). See also Commonwealth v. Melton, 77 Mass. App. Ct. 

552, 556 (2010) (actual notice of order and its terms, provided 

during telephone conversation, was sufficient to support 

conviction). Here the defendant received actual notice of the 

order on September 11, 2015, eleven days before he violated it. 

He had the opportunity to seek to have the order vacated during 

that time. The defendant's reliance on Commonwealth v. Welch, 

58 Mass. App. Ct. 408, 409-410 (2003), is accordingly misplaced, 

because in that case the defendant did not receive notice of the
15

order at any time before the alleged violation occurred.11 There 

was no due process violation on the facts here.12

Judgment affirmed.

 

11 The defendant argues that an extended c. 209A order is 

automatically invalid if the defendant did not receive notice of 

the hearing during the period (usually ten days) between the 

issuance of the temporary order and the hearing on whether to 

extend the order. No case so holds.

12 There is no merit to the defendant's contention that the 

Commonwealth failed to prove that he was the same Geoffrey 

Watson named in the c. 209A order. The testimony of Officer 

Stephen McKunes had a proper foundation in personal knowledge, 

and was sufficient to establish that while being booked the 

defendant himself had provided the information from which his 

identity could be confirmed -- including his home address. See 

Commonwealth v. Doe, 8 Mass. App. Ct. 297, 299 (1979).