Commonwealth v. Medeiros
Commonwealth v. Medeiros
Opinion
*132 *721 In this case, we consider the meaning of a special probation condition to "have no involvement with minors without responsible adult supervision." Because we conclude that the defendant had sufficient notice that trying to enter a grammar school through a locked rear door, without adult supervision and during classroom hours, violated this condition, we affirm the finding of a violation of the defendant's terms of probation and affirm the order revoking probation and imposing sentence.
Background . In 2001, the defendant was arrested for displaying child pornography and exposing himself to two girls, aged nine and *133 eleven, who were walking home from school. For that offense, the defendant pleaded guilty in 2002 to two counts of dissemination of matter harmful to a minor, two counts of dissemination of child pornography, and three counts of possession of child pornography. He received concurrent terms of four to five years in State prison on his convictions of dissemination of matter harmful to a minor and possession of child pornography. He also received a five-year probationary term for his convictions of dissemination of child pornography, which was set to begin after his release from State prison. One of the special conditions of his probation was to have "no involvement with minors without responsible adult supervision." 2
The 2002 convictions also violated an existing probation order in Florida, stemming from another incident where the defendant had exposed himself to children. Thus, once he completed his Massachusetts prison term in 2006, the defendant was extradited to Florida. The defendant returned to Massachusetts in December, 2012, and his five-year probationary term began at that time.
At roughly eight o'clock in the morning on December 5, 2013, off-duty New Bedford Police Sergeant Joshua Fernandes was walking near a Catholic grammar school in New Bedford when he made eye contact with the defendant, who was walking on the sidewalk of a cross street that ran along the front of the school. When Sergeant Fernandes peered over his shoulder, he saw the defendant do an "about face" and reverse his direction to move toward the school building. The building was surrounded by a ten-foot high chain link fence, with gaps at the stairwells that led to the school's exterior doors. Sergeant Fernandes observed the defendant enter the schoolyard and approach a ground level door in the back of the school. The door was secured by a keypad locking mechanism, equipped with an intercom and surveillance system, and was marked, "Please close the door firmly behind you." The sergeant watched the defendant peer into the school through the glass portion of the door, grab the door handle, and "attempt[ ] to open it," but he was thwarted by the locking mechanism.
The defendant then followed a blacktopped area on school property toward another entrance in the back of the building. At *134 that point, Sergeant Fernandes used his cell phone to call a marked unit *722 for assistance, and subsequently lost sight of the defendant for approximately thirty seconds. When the sergeant next saw the defendant, he was on the sidewalk adjacent to a third entrance to the school, heading toward a nearby bus stop.
Suspicious of the defendant's behavior, Sergeant Fernandes called for a marked police unit to the area and approached the defendant at the bus stop and identified himself as a police officer. He twice asked the defendant why he had tried to gain access to the school, but the defendant did not give a direct answer. Sergeant Fernandes next asked what he was doing in the area. The defendant stated that he had taken a bus from his home to Melville Towers, a location in downtown New Bedford, and then had gone to a store north of the school to buy cigarettes. Sergeant Fernandes was familiar with the area, and knew there was a store adjacent to Melville Towers that sold cigarettes. He therefore inquired why the defendant would walk away from Melville Towers to purchase cigarettes. He received no response. Once the marked unit arrived, the sergeant ran a check on the defendant and learned he was a registered level three sex offender. 3 Sergeant Fernandes notified the school of the incident and applied for a criminal complaint to issue for one count of trespass.
The defendant was served with a written notice of probation surrender alleging that he had violated the special condition of probation to "have no involvement with minors without responsible adult supervision." The notice also alleged that he had failed to obey a New Bedford ordinance prohibiting sex offenders from entering "child safety zones" (as defined in the ordinance) in violation of the condition of probation that he obey local, State, and Federal laws. An initial probation surrender hearing was scheduled for January 2, 2014, and the violation hearing was held across a series of dates in 2014 and 2015. 4
*135 The defendant testified on October 10, 2014, at the probation violation hearing. In that hearing, he admitted that he knew the building was a school, and claimed that he had approached the school to inquire about a food pantry that was sponsored by a nearby church. The judge did not credit the defendant's testimony, 5 and on October 16, 2014, found him to be in violation of the *723 terms of his probation. On August 12, 2015, the judge revoked the defendant's probation and sentenced him to ten to fourteen years in State prison. This appeal followed.
Discussion . On appeal, the defendant argues that the judge abused her discretion in finding that his conduct violated the probation condition barring involvement with minors without responsible adult supervision. Alternatively, he asserts that he lacked sufficient notice of the scope of that condition. These are overlapping questions, so we address them together. 6
"A determination whether a violation of probation has occurred lies within the discretion of the hearing judge.
[
7
]
Commonwealth
v.
Durling
,
Here, the framework outlined in
Kendrick
is particularly instructive. In
Kendrick
, the probationer had, in the past, used his antique automobile and his pet dog to prey on children. See 446 Mass. at 74,
Here, the defendant would constrain the plain meaning of "no involvement" to require only that the defendant refrain from physically engaging or interacting with a child. A similar claim was rejected in
Kendrick
. "The [probation] condition is not, as the defendant suggests, simply a requirement not to touch or speak to a child. 'No contact' obviously includes such conduct, but also requires the defendant to avoid even
the opportunity
for such touching or direct communication" (emphasis added).
Id
. at 77,
Kendrick
also teaches that the language of special probation conditions should be interpreted from the perspective of a reasonable person who understands the defendant's background. See
Kendrick
,
"No involvement without adult supervision" appears to be an uncommon phrase for probation orders, and the condition surely could have been articulated in a different way. However, we need not overthink its interpretation: Keeping in mind the defendant's background -- that of a level three sex offender with a history of preying on children -- his efforts to surreptitiously enter a grammar school building during classroom hours can be understood as involving the children inside. "[C]onditions of probation can be written -- and must be read -- in a commonsense way."
Gallo
,
So ordered .
WENDLANDT, J.
*139
(dissenting, with whom Milkey, J., joins) The question of the scope of conduct prohibited by a probation condition, on the one hand, and the question of whether the condition provided fair notice of the conduct proscribed, often overlap.
1
See
*726
Commonwealth
v.
Kendrick
,
Determining the scope of a condition of probation is essentially
*140
a matter of law and, therefore, gives rise to de novo review on appeal. See
United States
v.
Gallo
,
Here, the defendant's probation condition proscribed "involvement with minors without responsible adult supervision." Whatever may be the outer limits of the conduct encompassed by the phrase "involvement with minors," at a minimum its plain meaning requires some degree of engagement or interaction with a minor. 4
*727 The majority reasons that "involve" broadly means to "affect, implicate," and that because the "children's safety was implicated" and "affected" by the defendant's attempt to enter the school, he violated the "no involvement with" minors condition. However, while the defendant's failed attempt may have tested the school's security, it had no effect on any of the children; indeed, so far as the record indicates, no one at the school was even aware of his presence. Significantly, the probation condition proscribes involvement "with" a minor. There was no evidence that the defendant saw a minor or that a minor saw him, perforce there was no interaction "with" a child (or even any implication "for," or effect "on," any child). 5 Thus, the defendant's conduct -- an attempt to be involved with children -- does not fall within the plain meaning of *141 the condition despite its otherwise expansive breadth. 6
Neither
Commonwealth
v.
Marzilli
,
In
Kendrick
, the court considered a probation condition that the probationer have "no contact with" minors. The evidence presented at the probation revocation hearing included testimony that, for an hour long period, the probationer positioned himself alongside his antique automobile in the parking lot of a candy store near a concession stand of a car show. See
id
. at 74,
In holding that the defendant's attempt here violates the condition, the majority reasons that a level three sex offender who has been convicted of dissemination of pornography to minors walking home from school (as was the defendant in this case) should have known that he was barred from going to a school where minors were present. Yet, any similarity between the defendant's present conduct and his past convictions goes only to the question whether the defendant reasonably understood that the condition prohibited him from interacting with minors -- that is, the similarity is pertinent to the question whether the defendant had fair notice of the conduct prohibited. See
Kendrick
,
Whatever the wisdom of a condition that would have prohibited the defendant from attempting to enter a school or walking on school grounds in view of his past offenses, 9 the condition *143 imposed requires, at the least, some evidence that the defendant interacted or engaged with a minor. Here, there is no such evidence. Even under the flexible normative standard applicable to conditions of probation, the condition that the defendant "must have no involvement with minors without responsible adult supervision" does not extend to conduct consisting of no direct or indirect interaction or engagement with (or even a visual sighting of or by) any child. 10
The defendant's special conditions also included: to have no direct or indirect contact with the victims, to attend sexual perpetrator counseling, to surrender his computer hard drive upon request or allow the police to purge its contents, and to submit a deoxyribonucleic acid (DNA) blood sample upon request.
The Sex Offender Registry Board applies a level three classification when "the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination" of information identifying the defendant and his offenses. G. L. c. 6, § 178K (2) ( c ). Level three is the highest classification possible. Compare level one (low risk of reoffense); level two (moderate risk of reoffense). See G. L. c. 6, § 178K (2) ( a ), ( b ).
The evidentiary component of the violation hearing took place on three dates in the spring and fall of 2014, and the dispositional component took place on four dates from the fall of 2014 through the summer of 2015. The delays in the proceedings, while unexplained on the record, appear to be related at least in part to an inability to acquire the defendant's treatment center records. Proceedings were also continued multiple times at the request of the defendant or the Commonwealth or by agreement, and once because one of the attorneys was scheduled for another trial.
At the hearing, the defendant argued that he lacked a "bad" intent in entering the school grounds. The defendant never told Sergeant Fernandes that he was looking for a food pantry, and testified that his statement to Sergeant Fernandes was inaccurate. The judge noted this inconsistency, as well as several others in the defendant's testimony. To the extent the defendant challenges the judge's findings, his arguments are without merit. See
Commonwealth
v.
Janovich
,
See
Commonwealth
v.
Kendrick
,
"[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives."
L.L.
v.
Commonwealth
,
"Probation violations are considered on a case-by-case basis."
Kendrick
,
Similarly, we disagree with the defendant's assertion at oral argument that his conduct was merely an "attempt," and that to violate the condition, he must have interacted with or entered the presence of a child. See
Kendrick
,
While the testimony surrounding the defendant's admission is vague, it is incontrovertible that the defendant admitted to understanding at the time that his actions were contrary to the scope of his probation conditions; he knew that he was on the grounds of a school, peering into a school building, and that the terms of his probation prohibited him from "being around children."
For the first time on appeal, the defendant also challenges New Bedford's "child safety zones" ordinance as violative of the Home Rule Amendment, art. 89, § 6 of the Amendments to the Massachusetts Constitution. Because the judge's finding of a probation violation was warranted on the basis of the "no involvement" condition discussed
supra
, we need not address this argument. See
Commonwealth
v.
Guzman
,
Indeed, it appears that, in the typical case, the dispositive issue is whether the probation condition gave the defendant fair notice of the proscribed conduct. See, e.g.,
Commonwealth
v.
Kendrick
,
The same fundamental principles apply to State offenses. See
Commonwealth
v.
Lopez
,
While the defendant did not use the terms "actus reus" and "attempt" in his brief, he certainly argued that his actions (which he describes as "touch[ing] the door handle of a school and walk[ing] away in a span of five seconds") did not cross the line into prohibited conduct. Accordingly, we do not agree with the majority's conclusion that the defendant did not raise this argument in his brief.
The term "involve" is defined as "to enfold or envelope so as to encumber," "to draw in as a participant," "engage, employ," "to oblige to become associated," "embroil, entangle, implicate," "to occupy (oneself) absorbingly," "to commit (oneself) emotionally," "to enclose in a covering," "wrap," "to surround as if with a wrapping," "envelop, shroud," "to complicate or make intricate in thought or form," "to wind, coil, or wreathe about," "entwine," "to relate closely," "connect, link," "to have within or as part of itself," "contain, include," "to require as a necessary accompaniment," "entail, imply," "to have an effect on," "concern directly," "affect." Webster's Third New International Dictionary 1191 (2002).
Focusing on an alternative definition of the term "involve," the Commonwealth maintains that the defendant's conduct "involved" minors because his actions "connected" the students to him. Given that no student saw the defendant, the claimed connection is also unsupportable.
Because we conclude that the failed attempt does not constitute "involvement with" minors, we do not address whether, in addition, there was any evidence that the defendant's conduct was "without responsible adult supervision" as further required by the condition. In addition, we note that the record is devoid of any evidence that any child at the school was unsupervised by a responsible adult.
Accord
Commonwealth
v.
Basile
,
In finding a probation violation, the hearing judge relied in part on statements made by the defendant during the probation revocation hearing that he may have agreed with the judge that he was prohibited from being around children. As the majority concedes, these statements are vague, at best. Certainly, the defendant's position in opposing the revocation was that he did not violate the terms of his probation. In any event, the defendant's statements go only to the issue of fair notice; they do not answer the separate question whether his conduct constituted a violation or merely an attempted violation.
To be clear, we state no view on the separate question whether a condition prohibiting the defendant from entering school grounds could be added prospectively. See
Commonwealth
v.
Goodwin
,
The Commonwealth asks that we affirm on two alternative grounds, which the majority does not reach. First, the Commonwealth asks that we affirm on the basis that the hearing judge revoked the defendant's probation because he violated the local "child safety zones" ordinance. In our view, that ground is barred by
Doe
v.
City of Lynn
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.