Commonwealth v. Medeiros , 95 Mass. App. Ct. 132 ( 2019 )

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17-P-1270 Appeals Court
COMMONWEALTH vs. BRUCE MEDEIROS.
No. 17-P-1270.
Bristol. October 12, 2018. - April 4, 2019.
Present: Vuono, Meade, Milkey, Desmond, & Wendlandt, JJ.1
Practice, Criminal, Revocation of probation. Due Process of
Law, Probation revocation, Notice. Notice.
Indictments found and returned in the Superior Court
Department on March 4, 2002.
A proceeding for revocation of probation was heard by Renee
P. Dupuis, J.
Tara B. Ganguly for the defendant.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.
1 This case was initially heard by a panel comprised of
Justices Milkey, Desmond, and Wendlandt. After circulation of a
majority and a dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Justices Vuono
and Meade. See Sciaba Constr. Corp. v. Boston, 35 Mass. App.
Ct. 181, 181 n.2 (1993).
2
DESMOND, J. 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 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
3
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
2 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.
4
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 that point, Sergeant Fernandes used his cell phone to call a
marked unit 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
5
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
3 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).
6
violation hearing was held across a series of dates in 2014 and
2015.4
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 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.
4 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.
5 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, 55 Mass. App. Ct.
42, 50 (2002) (assessing weight and credibility of evidence is
exclusively province of hearing judge).
7
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, 407 Mass. 108, 111-112 (1990). The
Commonwealth must prove a violation of probation by a
preponderance of the evidence. Commonwealth v. Nunez, 446 Mass.
54, 59 (2006)." Commonwealth v. Bukin, 467 Mass. 516, 519-520
(2014). Interpreting a condition of probation is essentially a
question of law. United States v. Gallo, 20 F.3d 7, 11 (1st
Cir. 1994). "Due process requires that a probationer receive
6 See Commonwealth v. Kendrick, 446 Mass. 72, 75 n.5 (2006)
("[D]isputing [that] the term . . . applied to his behavior
. . . [and] arguing that the phrase is unconstitutionally vague
when applied in the circumstances of this case . . . simply
recasts the question whether the probation condition reasonably
communicated that his conduct . . . was barred").
7 "[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, 470 Mass. 169, 185 n.27
(2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9,
15 (1st Cir. 2008).
8
fair warning of conduct that may result in revocation of
probation; thus, probation conditions must provide reasonable
guidance with respect to what activities are prohibited."
Commonwealth v. Kendrick, 446 Mass. 72, 75 (2006). Reasonable
guidance, however, "is not to be confused with the fullest, or
most pertinacious, warning imaginable . . . [and does not have]
to describe every possible permutation, or . . . spell out every
last, self-evident detail." Gallo, supra at 12. "This notice
requirement can be satisfied by 'an imprecise but comprehensible
normative standard so that [people] of common intelligence will
know its meaning.'" Commonwealth v. Riz, 90 Mass. App. Ct. 10,
13 (2016), quoting Kendrick, supra.
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. While he was on probation, with a
condition that he have "no contact [with] children under
[sixteen] [years] of age," id. at 73, the defendant participated
in an antique car show that was held in the parking lot of a
candy store and was attended by children; he displayed his
automobile near a food concession stand, and brought his dog
with him to roam the event. The Supreme Judicial Court found
that the probation condition for no contact with minors gave
sufficient notice that the probationer was barred from taking
9
part in the car show, even if he never engaged with a child in
the process. See id. at 77. This reading relied in part on a
number of cases that interpreted "no contact" language broadly,
see id. at 75-76, but also indicated that a special condition
must be read reasonably and "with due regard to the
circumstances in which it was imposed." Id. at 75. The court
was particularly troubled by the similarity in the circumstances
of the car show and the defendant's past offenses. See id. at
77.
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. The defendant here also purports to
distinguish Kendrick because of the language of the no contact
order there. We disagree. While Kendrick addressed a different
special condition, that fact need not preclude a similar
outcome.8 "Involvement" is a broad word. The definition of
8"Probation violations are considered on a case-by-case
basis." Kendrick, 446 Mass. at 78. For this reason, we also
10
"involve" includes to "affect, implicate." Webster's Third New
International Dictionary 1191 (2002). "Implicate," in turn,
means to "include"; "entail as a natural . . . concomitant[] or
consequence." Id. at 1135. Plainly, the children's safety was
implicated in the defendant's efforts to enter the building
surreptitiously, whether or not they were aware of the
defendant's presence. Moreover, the defendant was unsupervised
at the time of the incident. By entering school grounds when
classes were in session, a place he had no right to be, and
trying to enter through the locked back door of the school,
unannounced and unescorted, he involved himself with and
affected the safety of the minors within. To that end, any
emphasis on the fact that the door was locked is misplaced and
overlooks why the door was locked to begin with (i.e., the
safety of the children).9
decline the defendant's invitation to venture into a
consideration of hypotheticals beyond the facts of this case.
9 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, 446 Mass. at 77
(probation condition required defendant to "avoid even the
opportunity" for prohibited conduct). Cf. Commonwealth v.
Marzilli, 457 Mass. 64, 67 (2010), overruled in part on other
grounds by Commonwealth v. LaBrie, 473 Mass. 754, 763-764 (2016)
(2010) ("the fortuity that the defendant failed in his attempt
to complete a crime does not absolve him from responsibility for
it"). In any event, because this argument was not raised in the
defendant's brief, the claim is not before us. See Kendrick,
446 Mass. at 78 n.9; Mass. R. A. P. 16 (a) (4), as amended, 367
11
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, 446 Mass. at 77. It is relevant,
then, just as it was in Kendrick, to consider the "similarity to
his conduct during his prior offenses." Id. This defendant was
serving a five-year probationary term for the dissemination of
child pornography in 2001. On that occasion, the defendant
exposed himself and showed child pornography to two girls
walking home from school. Thus, his prior attacks also preyed
on school children and required little in the way of advance
planning. On the occasion at issue here, the defendant's
behavior was conspicuous enough to catch the suspicion of an
off-duty police officer walking in the area. Accompanied by no
one, the defendant eschewed the option of entering through the
school's front doors and made no effort to use the intercom at
the rear door. The defendant gave false responses to the
questions of the officer, and his excuse that he was searching
for a food pantry was post hoc, illogical, and discredited by
the hearing judge. The defendant did not have a cogent reason
for being at the school, and he admitted during the revocation
Mass. 921 (1975). See also Cariglia v. Bar Counsel, 442 Mass.
372, 379 (2004).
12
hearing to knowing his behavior ran afoul of his probation
conditions.10 The defendant had ample notice his actions were
improper.
"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, 20 F.3d at 12. We see no abuse
of discretion in the judge's determination that, in these
circumstances, the defendant violated his condition of probation
to have "no involvement with minors without responsible adult
supervision."11 We therefore affirm the finding of a violation
10While 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."
11For 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
2
of the terms of the defendant's probation and affirm the order
revoking probation and imposing sentence.
So ordered.
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, 469
Mass. 492, 500 (2014), quoting Beeler v. Downey, 387 Mass. 609,
613 n.4 (1982) ("We generally decline 'to consider
constitutional issues for the first time on appeal in order to
avoid an unnecessary constitutional decision'"). See also
Commonwealth v. Bartlett, 374 Mass. 744, 749 (1978), quoting
Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347-348
(1936) (Brandeis, J., concurring) (even if properly presented on
the record, "[a] court will ordinarily 'not pass upon a
constitutional question . . . if there is also present some
other ground upon which the case may be disposed of").
WENDLANDT, J. (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 Commonwealth v. Kendrick, 446 Mass. 72, 75 & n.5
(2006). However, as this case illustrates, these questions are
not always the same. We agree with the majority that the
evidence here supports the inference that the defendant tried to
be involved with children even though he understood that any
such involvement, if unsupervised, would violate his probation
condition. He had fair notice of the conduct proscribed by the
probation condition and attempted nonetheless to violate it.
But his attempt failed, thwarted by a locked door, which
prevented him from having any encounter with a child. Indeed,
so far as the record shows, he neither saw nor was seen by a
minor. Thus, although there was ample proof of mens rea, the
1 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.,
Kendrick, 446 Mass. 72, 75 & n.5 (2006). See also Commonwealth
v. Power, 420 Mass. 410, 421 (1995) (probation condition that
defendant not profit from her criminality was not vague);
Commonwealth v. Adams, 389 Mass. 265, 270 (1983), quoting
Commonwealth v. Jarrett, 359 Mass. 491, 496-497 (1971) ("if the
language which is challenged conveys sufficiently definitive
warning as to the proscribed conduct . . . it is
constitutionally adequate"); Commonwealth v. Riz, 90 Mass. App.
Ct. 10, 13-14 (2016) (condition that defendant not "minimize"
his criminal activity failed to provide reasonable guidance as
to what conduct was prohibited).
2
Commonwealth was unable to demonstrate the actus reus necessary
to make out a violation. See United States v. Zhen Zhou Wu, 711
F.3d 1, 18 (1st Cir. 2013), quoting United States v. Whiteside,
285 F.3d 1345, 1353 (11th Cir. 2002) ("even where the evidence
is sufficient to show the necessary mens rea, the government
still must always 'meet its burden of proving the actus reus of
the offense'").2 Because what occurred here was an attempted
probation violation, not an actual one, we dissent.3
Determining the scope of a condition of probation is
essentially a matter of law and, therefore, gives rise to de
novo review on appeal. See United States v. Gallo, 20 F.3d 7,
11 (1st Cir. 1994). As with legislative enactments, the task of
construing the scope of a probation condition begins by
reference to the plain and ordinary meaning of the words
comprising the condition. See id. at 12. See also Commonwealth
2 The same fundamental principles apply to State offenses.
See Commonwealth v. Lopez, 433 Mass. 722, 725 (2001) ("A
fundamental tenet of criminal law is that culpability requires a
showing that the prohibited conduct (actus reus) was committed
with the concomitant mental state (mens rea) prescribed for the
offense").
3 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.
3
v. Power, 420 Mass. 410, 421 (1995) (applying standards for
construction of statutes to probation condition). The words of
the probation condition define its scope, measured "by an
'imprecise but comprehensible normative standard so that
[people] of common intelligence will know [their] meaning.'"
Commonwealth v. Riz, 90 Mass. App. Ct. 10, 13 (2016), quoting
Commonwealth v. Kendrick, 446 Mass. at 75.
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
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
4 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).
4
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 the
condition despite its otherwise expansive breadth.6
Neither Commonwealth v. Marzilli, 457 Mass. 64, 67 (2010),
overruled on other grounds by Commonwealth v. LaBrie, 473 Mass.
754, 764 (2016), nor Kendrick, 446 Mass. at 74, is to the
contrary. Marzilli involved a statute that prohibits attempting
5 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.
6 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.
5
to commit a crime, G. L. c. 274, § 6. Pursuant to this statute,
"attempt is a crime separate and distinct from the substantive
offense to which it is connected, one that focuses on, and
punishes, acts that threaten the accomplishment of the
substantive offense, not the substantive offense itself."
LaBrie, 473 Mass. at 764. Here, there is no probation condition
comparable to the attempt statute.
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. During that time, he was amid a crowd
that included minors. See id. While there was no evidence that
the probationer spoke to any child, children came "within ten to
fifteen feet of the [probationer], perhaps even as close as five
feet." Id. And, the probationer allowed his dog to roam the
event -- a ploy he had previously used to lure children to him
before sexually assaulting them. The court held that the
probationer violated the "no contact with minors" condition,
relying on a series of cases in which a no contact condition had
been violated. Id. at 75-76. In each of those cases (and in
Kendrick), there was evidence from which it could be inferred
6
that there was some interaction between the defendant and the
protected individual. In each, at the least, the protected
individual saw or was seen by the defendant. See, e.g.,
Commonwealth v. Finase, 435 Mass. 310, 311 (2001) (no contact
provision violated when defendant was seen by protected
individual at town concert, first near bandstand and then
approximately three or four feet away from her).7 In contrast,
here, there was no evidence of even this minimal level of
interaction between the defendant and any minors during the five
seconds he spent at the school's door.
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
7 Accord Commonwealth v. Basile, 47 Mass. App. Ct. 918, 919
(1999) (no contact provision violated when defendant is seen by
protected individual more than one block away from her, jumping
up and down and waving at her); Commonwealth v. Delaney, 36
Mass. App. Ct. 930, 931 (1994) (implicitly recognizing that
probationer violates no contact condition where protected
individual sees defendant on her driveway); Commonwealth v.
Tate, 34 Mass. App. Ct. 446, 449 (1993) (probationer violates no
contact condition where protected individual sees him watching
her from "the top of the street").
7
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, 446 Mass. at 75; Gallo, 20 F.3d at 11. It is of no
assistance in determining whether his failed attempt to enter
the school crossed the prohibited line.8
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 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
8 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.
9 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, 458 Mass. 11, 17 (2010) (recognizing that judge may
modify general or ambiguous probation terms to add "specificity
or clarity"); Buckley v. Quincy Div. of Dist. Court Dep't, 395
Mass. 815, 820 (1985) (recognizing that supervisory court has no
authority to modify probation conditions if there "has been no
material change in the probationer's circumstances").
8
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
10The 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. Lynn, 472 Mass. 521, 523 n.5 (2015) (holding
similar local ordinance prohibiting sex offenders from being
within designated "child safety zones" was prohibited by Home
Rule Amendment, art. 89, § 6 of the Amendments to the
Massachusetts Constitution). Second, the Commonwealth asks that
we affirm on the basis that revocation was warranted because the
defendant committed criminal trespass. In the face of a
contested factual dispute, however, the hearing judge declined
to find that the defendant violated his probation on the
criminal trespass ground. See Commonwealth v. Moon, 380 Mass.
751, 756 (1980).