Commonwealth v. Kurko ( 2019 )

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18-P-311 Appeals Court
COMMONWEALTH vs. SARAH KURKO.
No. 18-P-311.
Suffolk. March 12, 2019. - August 1, 2019.
Present: Desmond, Sacks, & Lemire, JJ.
Harassment Prevention. Practice, Criminal, Required finding,
Directed verdict, Stipulation.
Complaint received and sworn to in the Brighton Division of
the Boston Municipal Court Department on March 8, 2016.
The case was tried before Myong J. Joun, J.
Sarah M. Unger for the defendant.
Monica J. DeLateur, Assistant District Attorney, for the
Commonwealth.
LEMIRE, J. After a one-day jury trial, the defendant was
convicted of a single count of violation of a harassment
prevention order. At the close of the Commonwealth's evidence,
and at the close of all evidence, the defendant moved for a
required finding of not guilty. Her motions were denied. On
appeal, she argues that the trial judge erred in denying her
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motion at the close of the Commonwealth's case because there was
insufficient evidence to support her conviction. Because we
agree that the Commonwealth presented insufficient evidence on
the sole charge, we reverse the judgment and set aside the
verdict.1
Facts. We recite the facts in the light most favorable to
the Commonwealth. The complainant was a concierge at a luxury
condominium complex, whose job was to greet and assist the
residents. During his employment there, he obtained a
harassment prevention order against the defendant, a resident.
The complainant continued to have regular daily contact with the
defendant at the complex after obtaining the order, despite
trying to avoid her. On the afternoon of January 5, 2016, while
the harassment prevention order against the defendant was still
active, the complainant was beginning his shift, and was taking
over from a coworker who was ending her shift. The
complainant's coworker had been assisting the defendant with
paperwork, which was "jumbled and mixed up." When the
complainant took over the task, he told the defendant that she
needed to put the papers in order, and she "erupted." The
1 The defendant also claims that the prosecutor's closing
argument improperly referred to acts of alleged prior harassment
by the defendant. Given our conclusion, detailed infra, that
there was insufficient evidence to support her conviction, we
need not address this claim.
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defendant was "screaming at the top of [her] lungs" and
swearing. She lunged toward the complainant over the desk, and
pointed her finger in his face. The complainant told her to
lower her voice and "go to [her] unit," but she refused, and he
ultimately called 911 for assistance. The interaction lasted
approximately twelve to fifteen minutes before the defendant
"went back up into her unit."
The defendant testified that the complainant had taken the
papers in question and "just threw them up in the air." She
admitted that she had gotten upset and angry, and was yelling
and swearing, but denied lunging at the complainant. During her
testimony, the defendant was not asked about the harassment
prevention order at issue, and made no reference to it.
Prior to trial, the parties notified the judge that they
intended to stipulate to (1) the existence of the order; (2)
that it was in effect on the date of the offense; and (3) that
the defendant was served with the order and aware of its
existence and terms. Ultimately, however, no such stipulation
was introduced in evidence or otherwise presented to the jury
before the close of evidence. Although the parties and the
judge had expressed their expectation that the Commonwealth
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would introduce a redacted copy of the order itself in evidence,
the order was never proffered.2
At the close of the Commonwealth's evidence, the defendant
moved for a directed verdict, arguing only that the defendant's
conduct did not rise to a level sufficient to violate the order.
At the close of all evidence, the defendant renewed her motion
without additional argument. During a charge conference, the
parties reiterated their understanding of the stipulation, and
agreed that the judge would not instruct the jury on the element
of knowledge. Without objection, during the jury charge, the
judge then instructed the jury that "both sides agreed and
stipulated" that (1) a court issued a harassment prevention
order prohibiting the defendant from abusing or harassing the
complainant; (2) the order was in effect on the day of the
alleged violation; and (3) the defendant knew of the order and
its terms. He instructed the jury that the only element that
they needed to consider was whether the defendant violated the
order by abusing or harassing the complainant.
Discussion. On a challenge to sufficiency, we review to
determine "whether, after viewing the evidence in the light most
2 In addition to the parties discussing the expected
admission of the order prior to trial, the judge in his initial
instructions told the jury, "You will get to see a copy of [the
order], you will get to look at it, and you will learn, as you
hear the evidence, what the order said and whether she violated
that order."
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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, quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). To
convict a defendant of violation of a harassment prevention
order, the Commonwealth must prove "that a court had issued such
an order; that the order was in effect on the date that the
violation allegedly occurred; that the defendant knew the
pertinent terms of the order; and that the defendant violated
the order." Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 492
(2002). "Consequently, unless there is an appropriate
stipulation, at least a redacted [harassment] prevention order
often is introduced to prove the crime of violation of that
order." Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 109
(2014).
The Commonwealth appropriately concedes that the
stipulation at issue here was improperly executed, and was not
before the jury prior to the close of evidence in the case. It
is "incumbent on the Commonwealth to ensure that any stipulation
concerning the existence of an element of the crime charged or
of any material fact related to proof of the crime is presented
in some manner to the jury as part of the evidence of the case."
Commonwealth v. Ortiz, 466 Mass. 475, 476 (2013) (announcing
prospective rule). "Such a rule is consistent with the
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acknowledged burdens of production and proof that rest with the
Commonwealth in a criminal case." Id. at 484. Following Ortiz,
Mass. R. Crim. P. 23, 471 Mass. 1501 (2015), was adopted to provide
clear guidance "for the manner in which stipulations of fact
agreed to by the parties before or during trial are to be
memorialized and used at trial."3 Reporter's Notes to Mass. R.
Crim. P. 23, Massachusetts Rules of Court, at 190 (Thomson
Reuters 2019). See Mass. G. Evid. § 611(g)(2) (2019). The
Commonwealth urges that despite its failure to provide the jury
with the stipulation, the error does not merit reversal as it
was merely "technical," and did not result in a substantial risk
of a miscarriage of justice.4 We disagree.
As the Commonwealth argues, the mutual intent of the
parties to enter into the stipulation at issue was indeed
apparent throughout the trial. Nonetheless, to be properly
considered to contribute to the Commonwealth's proof, a
stipulation must be presented to the jury during the evidence
3 "Any stipulation to an essential element of a charged
offense entered by the parties before or during trial shall be
in writing and signed by the prosecutor, the defendant, and
defense counsel. Any such stipulation shall be read to the jury
before the close of the Commonwealth's case and may be
introduced into evidence." Mass. R. Crim. P. 23 (a).
4 The Commonwealth concedes that the stipulation in this
case was not in compliance with Mass. R. Crim. P. 23 (a) because
it was not reduced to writing, and not signed by the prosecutor,
defense counsel, and the defendant.
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phase. See Ortiz, 466 Mass. at 484; Mass. G. Evid. § 611(g)(2).
At the close of evidence in the case at bar, the jury had no
evidence before them specifying the terms of the harassment
prevention order at issue and, thus, no basis to conclude that
the defendant had violated the order. They additionally had
heard no evidence tending to demonstrate that the defendant was
aware of the order and its terms. Contrary to the
Commonwealth's argument, the fact that the defendant did not
contest the points at issue during the trial is of no moment. A
"defendant's theory of [her] case cannot relieve the
Commonwealth of its burden of proving every element of a crime
beyond a reasonable doubt." Commonwealth v. Charles, 456 Mass.
378, 383 (2010), quoting Commonwealth v. Shea, 398 Mass. 264,
269 (1986) (concessions in opening and closing statements do not
constitute valid stipulations). The Commonwealth's proof at the
close of evidence was fatally insufficient to convict the
defendant, and "a conviction premised on legally insufficient
evidence always creates a substantial risk of a miscarriage of
justice." Commonwealth v. Montes, 49 Mass. App. Ct. 789, 792
n.4 (2000). See Commonwealth v. McGovern, 397 Mass. 863, 867-
868 (1986) ("findings based on legally insufficient evidence are
inherently serious enough to create a substantial risk of a
miscarriage of justice").
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Accordingly, the judgment is reversed and the verdict is
set aside. Judgment shall enter for the defendant.
So ordered.