Commonwealth v. Telcinord ( 2018 )


Menu:
  • NOTICE: All slip opinions and orders are subject to formal
    revision and are superseded by the advance sheets and bound
    volumes of the Official Reports. If you find a typographical
    error or other formal error, please notify the Reporter of
    Decisions, Supreme Judicial Court, John Adams Courthouse, 1
    Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
    1030; SJCReporter@sjc.state.ma.us
    17-P-1050                                           Appeals Court
    COMMONWEALTH    vs.   ELISABETH TELCINORD.
    No. 17-P-1050.
    Norfolk.     February 7, 2018. - October 17, 2018.
    Present:   Trainor, Blake, & Lemire, JJ.
    Abuse Prevention. Protective Order. Practice, Criminal,
    Instructions to jury. Arrest. Words, "Stay away."
    Complaint received and sworn to in the Quincy Division of
    the District Court Department on August 5, 2016.
    The case was heard by Mark S. Coven, J.
    Meredith Shih for the defendant.
    Marguerite T. Grant, Assistant District Attorney (Sean P.
    Riley, Assistant District Attorney, also present) for the
    Commonwealth.
    TRAINOR, J.   After a jury trial in the Quincy Division of
    the District Court Department, the defendant, Elisabeth
    Telcinord, was convicted on a criminal complaint charging her
    with one count of violating an abuse prevention order pursuant
    2
    to G. L. c. 209A, § 7.1   On appeal, the defendant argues that (1)
    there was insufficient evidence that she violated the stay-away
    provision of the order; (2) the judge's instruction to the jury
    to use their common understanding of the phrase "stay away from
    the plaintiff's residence" when the jury asked for a legal
    definition was error; and (3) testimony about the defendant's
    arrest created a substantial risk of a miscarriage of justice.
    We affirm the judgment.
    On August 3, 2016, the Brockton Division of the District
    Court Department issued a G. L. c. 209A abuse prevention order
    directing the defendant to stay at least fifty yards away from
    the victim, not contact him, stay away from his workplace, and
    stay away from his residence located at 13 Hall Street in
    Randolph.2
    At 8:15 P.M. on August 4, 2016, a Brockton police officer
    served the defendant with a copy of the c. 209A order in hand.
    At about 3 A.M. on August 5, 2016, a Randolph police officer was
    dispatched to Hall Street.   The officer drove on North Main
    1 The defendant was sentenced to one year of probation with
    the condition that she complete a batterer's program.
    2 The Commonwealth did not proceed against the defendant for
    a violation of the no-contact portion of the order.
    3
    Street, turned onto Hall Street, and parked his marked cruiser
    at 15 Hall Street.3
    The officer observed two vehicles drive onto Hall Street
    from North Main Street.    The first vehicle was driven by a man,
    later identified as the victim and the subject of the abuse
    prevention order.     The second vehicle was operated by the
    defendant and was traveling about three car lengths behind the
    victim's vehicle.     As the vehicles approached the cruiser, the
    defendant pulled her vehicle over to the right side of the
    street and stopped.    The victim stopped his vehicle in front of
    the cruiser and got out to speak to the officer, who described
    the victim as "upset."     The officer thereafter drove his cruiser
    back to the defendant's vehicle to speak with her.4
    The defendant told the officer that "she thought that she
    was in compliance with the order by the distance she was away
    from the [victim's] house."     She also said that she was married
    to the victim, and admitted that she was following him; she was
    trying to deal with a family issue involving the victim having
    contacted her father.     The officer described the defendant as
    3 Hall Street is a residential street of mostly single-
    family homes. The street is not a "cut-through," and has
    minimal traffic -- "mostly people who live on the street."
    4 Based on the testimony and exhibits submitted at trial, we
    infer that the distance to the defendant's vehicle was very
    short. The officer presumably wanted to keep his cruiser close
    to him.
    4
    "upset."      The officer spoke again with the victim, who was still
    upset, and then returned to the defendant's vehicle and arrested
    her.       She identified herself by name, birthdate, and address at
    the booking.
    Discussion.     1.   Statutory framework.   The Legislature
    enacted G. L. c. 209A in 1978.       The original version of G. L.
    c. 209A, § 7, criminalized only a defendant's violation of an
    order to "refrain from abus[e]" or "vacate the household."           See
    St. 1983, c. 678, § 5.       In 1990, the Supreme Judicial Court
    considered the question whether a trial court judge's order
    requiring the defendant to "leave and remain away from the
    [marital household]" was authorized under the statute, because
    the statute, at that time, only contained the provision to
    "vacate forthwith the household."       Commonwealth v. Gordon, 
    407 Mass. 340
    , 344-345 (1990).       The defendant argued that the order
    could only be violated by failing to vacate the household, and
    not by his returning to visit it.       
    Id. at 345-346.
      The court
    concluded that the defendant had misconstrued the purpose and
    scope of the term "vacate" as used in G. L. c. 209A.5,6       
    Id. at 346-348.
    The Legislature acted quickly and, in agreement with the
    5
    court, enacted St. 1990, c. 403, § 2, which amended G. L.
    c. 209A, § 1, to define "vacate order" as a "court order to
    leave and remain away from the premises . . ." (emphasis added).
    General Laws c. 209A, § 3 (c), as amended by St. 1990, c. 403,
    § 3, allows the court to "[order] the defendant to vacate
    5
    The court proceeded to elaborate on the harm that the
    Legislature was attempting to prevent, and why it was essential
    that the defendant be required to stay away from the residence
    and workplace of the victim.
    "An order to 'vacate the household' . . . creates a haven
    for the abused party in which no further abuse need be
    feared and provides a temporary, partial separation of the
    abused and abusive party, thereby leaving fewer
    opportunities for abusive contact.
    "Were we to adopt the defendant's definition of 'vacate,'
    an abusive party, having surrendered occupancy of the
    household, would be free to return to the house at will.
    The abused party would have no ability to lessen the
    abusive party's prerogative to initiate contact and could
    expect no refuge from the possibility of further abuse.
    That the Legislature intended the word 'vacate' to include
    the concept of 'remain away' is demonstrated by the
    forthwith and remain away from the household, multiple family
    dwelling, and workplace" (emphasis added).
    6 "In determining the range of activity the Legislature
    intended to prohibit by authorizing courts to issue orders
    requiring defendants to 'vacate' the marital home, this court
    must look to the words of the statute 'construed by the ordinary
    and approved usage of the language, considered in connection
    with the cause of [the statute's] enactment, the mischief or
    imperfection to be remedied and the main object to be
    accomplished.' . . . Chapter 209A, while allowing an order to
    'vacate,' provides no particular definition for the term.
    Webster's New Int'l Dictionary 2810 (2d ed. 1957) defines
    'vacate' as '3. [t]o make vacant, as an office, post, house,
    etc.; to deprive of an incumbent or occupant.' While this
    definition makes clear the fact that the Legislature intended an
    abusive defendant to depart from the house, it provides no
    guidance in either a negative or affirmative direction whether
    the Legislature intended to require such a defendant to stay
    away from the house subsequent to the initial departure. The
    Legislature's intention, however, becomes clear when we consider
    the 'mischief or imperfection' with which c. 209A is concerned
    and 'the main object' which c. 209A seeks to accomplish."
    
    Gordon, 407 Mass. at 346
    .
    6
    authority of a judge to issue a 'vacate' order for a period
    of one year. G. L. c. 209A, § 3 (b)."
    
    Id. at 347.
    The Gordon court read into the statutory language the
    requirement that the defendant not only vacate the residence but
    also remain away from it.    The Legislature responded by amending
    the statute and making the court's interpretation explicit in
    the statutory language.     See note 
    5, supra
    .   The purpose of this
    interpretation, significantly, is the recognition of the core
    purpose of an abuse prevention order, that is, the creation and
    maintenance of a safe haven from the threat of continued abuse.
    To establish a violation of G. L. c. 209A, § 7, the
    Commonwealth must prove that (1) a valid G. L. c. 209A order was
    issued by a judge, (2) the order was in effect on the date of
    the alleged violation, (3) the defendant had knowledge of the
    order, and (4) the defendant violated the order.     See
    Commonwealth v. Collier, 
    427 Mass. 385
    , 388 (1998); Commonwealth
    v. Delaney, 
    425 Mass. 587
    , 595-597 (1997), cert. denied, 
    522 U.S. 1058
    (1998).   Only the fourth requirement is in dispute
    here, i.e., whether the defendant violated the order.
    2.   Stay away.   The defendant argues that the phrase "stay
    away" is so vague that without the judge defining specific
    geographic boundaries for the meaning of "stay away," the jury
    7
    were allowed to speculate in reaching their decision on an
    essential element of the crime.7
    Our courts have not required this kind of mathematical
    specificity in order to find a statute enforceable and a
    defendant's due process rights protected.   In Commonwealth v.
    Bohmer, 
    374 Mass. 368
    , 369 (1978), the Supreme Judicial Court
    addressed a similar issue where the defendants challenged their
    convictions of wilfully interrupting or disturbing a school in
    violation of G. L. c. 272, § 40.8   The defendants contended that
    the statute was unconstitutionally vague and therefore void, and
    that their convictions under the statute were denials of their
    right to due process under the Fourteenth Amendment to the
    United States Constitution.   
    Id. at 371.
      The court answered
    their contentions while upholding the constitutionality of the
    statute.
    "Due process requires that a criminal statute be
    sufficiently clear to give notice of the conduct that it
    prohibits. A statute which either forbids or requires the
    doing of an act in terms so vague that men of common
    intelligence must necessarily guess at its meaning and
    7 The defendant's reliance on Commonwealth v. O'Shea, 
    41 Mass. App. Ct. 115
    , 118 (1996), overruled on other grounds,
    
    Delaney, 425 Mass. at 597
    n.9, is misplaced, as we do not agree
    that it established the outer boundary of the meaning of "stay
    away."
    8 General Laws c. 272, § 40, was rewritten by St. 2018,
    c. 69, § 159, to prohibit the interrupting and disturbing of "an
    assembly of people meeting for a lawful purpose." This
    amendment, however, does not affect the holding in the Bohmer
    opinion.
    8
    differ as to its application, violates the first essential
    of due process of law. Due process requirements also
    mandate that no statute have such a standardless sweep that
    arbitrary and discriminatory enforcement by the police and
    the courts is permitted. It would certainly be dangerous
    if the [L]egislature could set a net large enough to catch
    all possible offenders, and leave it to the courts to step
    inside and say who could be rightfully detained, and who
    should be set at large.
    "However, since words are the elements that constitute a
    statute, mathematical precision in the definition of
    legislative enactments is not required. A statute is
    satisfactory so long as it clearly indicates what it
    prohibits as a whole. . . . Uncertainty as to whether
    marginal offenses are included within the coverage of a
    statute does not render it unconstitutional if its scope is
    substantially clear." (Citations and quotations omitted.)
    
    Id. at 371-372.
    In Commonwealth v. Orlando, 
    371 Mass. 732
    , 733-736 (1977),
    the court previously addressed this principle when upholding the
    constitutionality of G. L. c. 272, § 53, which provides
    punishment for disturbers of the peace.9
    "A law is unconstitutionally vague if it is not
    sufficiently explicit to give clear warning as to
    proscribed activities. Commonwealth v. A Juvenile, 
    368 Mass. 580
    , 586-587 (1975). Connally v. General Constr.
    Co., 
    269 U.S. 385
    , 391 (1926). A law is not vague,
    however, if it requires a person to conform his conduct to
    an imprecise but comprehensible normative standard so that
    men of common intelligence will know its meaning.
    Broadrick v. Oklahoma, 
    413 U.S. 601
    , 608 (1973). Coates v.
    Cincinnati, 
    402 U.S. 611
    , 614 (1971). Moreover, even when
    the outer boundaries of a law are imprecise, such
    imprecision does not permit a facial attack on the entire
    law by one whose conduct 'falls squarely within the "hard
    core" of the [statute's] proscriptions,' [Broadrick,
    9 The statute "proscribes conduct which tends to annoy all
    good citizens and does in fact annoy anyone present not favoring
    it." 
    Orlando, 371 Mass. at 734
    .
    9
    supra], particularly if greater specificity in the law is
    impractical." (Emphases added.)
    
    Id. at 734.
    Approximately fifty per cent of our country's State
    Legislatures have adopted the general "stay away" from a
    specified location provision in their domestic violence
    prevention statutes.10   Various States use different phraseology
    for their general stay-away provisions but all result in the
    same prohibition.   Arizona, for example, prohibits "coming near"
    the residence (or place of employment or school), Ariz. Rev.
    Stat. Ann. § 13-3602 (2018); Texas prohibits "going to or near
    the residence or place of employment," Tex. Fam. Code Ann.
    § 85.022(b)(3) (2017); Louisiana prohibits "going near the
    residence or place of employment," La. Rev. Stat. Ann.
    § 46:2135(A)(1) (2018); and Maine prohibits "[b]eing at or in
    the vicinity of" the plaintiff's residence, place of employment,
    or school.    Me. Rev. Stat. Ann. tit. 19-A, § 4007(1)(C)(2)
    (2017).
    10Those States requiring a specified distance have either
    specified a distance in the statute, left it entirely to the
    discretion of the judge, or both. Idaho and Montana, for
    example, specify that a defendant must stay 1,500 feet away from
    the plaintiff's residence or other specified location, or any
    other appropriate distance. See Idaho Code § 39-6306(1)(i)
    (2018); Mont. Code Ann. § 40-15-201(2)(d) (2017). Washington
    has upheld a one-mile stay-away order, see State v. Chapman, 
    140 Wash. 2d 436
    , 451, cert. denied, 
    531 U.S. 984
    (2000); Wash. Rev.
    Code § 26.50.060(1)(c) (2018), while Kentucky has required that
    a stay-away order not exceed 500 feet. Ky. Rev. Stat. Ann.
    § 403.740(1)(a)(3) (2018).
    10
    States have interpreted the meaning of, and the parameters
    of, "stay away" from a fixed location.   In State v. Williams,
    
    226 N.C. App. 393
    , 408 (2013), the court distinguished between a
    domestic violence protective order prohibiting the defendant
    from visiting the protected person's workplace and a more
    general domestic violence protective order requiring the
    defendant to stay away from the protected person's workplace.
    "[W]here a court orders a defendant to 'stay away' from a
    particular location, it does so to prevent the defendant
    from threatening, abusing, following, interfering with, or
    harassing the protected party. It is possible that a
    defendant may not actually set foot upon the workplace
    premises but could harass or interfere with a victim by
    lurking so near as to impede the victim's ability to travel
    from place to place -- indeed, defendant herein did just
    that several times . . . -- but the area to 'stay away'
    from is not without boundaries. . . . The indictment
    alleges defendant was 'outside' [the protected person's]
    workplace, and although technically the area 'outside of
    [the protected person's] workplace could include any place
    in the world outside the walls of the salon, obviously such
    an interpretation is absurd. Certainly the order must mean
    that defendant could not be so close to [the protected
    person's] workplace that he would be able to observe her,
    speak to her, or intimidate her in any way, but we cannot
    define the exact parameters of the term 'stay away.'"
    
    Id. at 409-410.11,12
    11Notably, the defendant's conviction in Williams was
    reversed for a number of reasons, including that there was
    insufficient evidence to show that the defendant had violated
    the stay-away order or any of the order's purposes as discussed
    by the court. 
    Williams, 226 N.C. App. at 411-412
    .
    12In Residences at the Jewel, LLC vs. Tiedeman, Minn. Ct.
    App., No. C5-03-45 (Aug. 5, 2003) (unpublished decision), the
    court considered the question whether a defendant could be
    ordered to stay away from a location directly across the road
    from where he lived. The defendant argued that the stay-away
    11
    Our case law is replete with examples of upholding
    statutory language that is not precise but nevertheless
    "requires a person to conform his conduct to an imprecise but
    comprehensible normative standard so that men of common
    intelligence will know its meaning."   
    Orlando, 371 Mass. at 734
    .
    For example, in Orlando, we applied a two-pronged test to define
    what is disruptive conduct pursuant to G. L. c. 272, § 53.     See
    
    id. at 734-735.
      General Laws c. 272, § 53, prohibits conduct,
    "which, first, most people would find to be unreasonably
    disruptive, and second, [which] did in fact infringe on
    someone's right to be undisturbed.   The first prong is normative
    and protects potential defendants from prosecutions based on
    order was "vague and overbroad." He argued that because he
    lived directly across the road from the plaintiffs, it was "not
    feasible" for him to stay away, and claimed that he was "running
    the risk of contempt by simply staying in his home or, more
    seriously, every time he ventures out from his property onto
    [the road]." The court's answer to this alleged problem is an
    illustration of how a general stay-away order can be
    appropriately flexible when a specific distance would be
    inappropriate and unworkable.
    "As [the plaintiffs] assert, 'common sense dictates that
    the "stay away" language . . . does not apply to one who is
    in his own house, or to one who is simply using a public
    road to get to and from his own house.' [The defendant's]
    reading of the language is an unreasonable interpretation,
    in light of the fact that there is a county road between
    the [plaintiffs'] property and [the defendant's] home and
    those of his neighbors. [The defendant] continues to drive
    the road regularly and has encountered [the plaintiffs] in
    a civil manner since the order was issued. He has never
    been found in contempt. We conclude that the language
    'stay away' is not overly broad or vague in this context."
    12
    unreasonable individual sensitivities.    The second prong
    requires that the crime have a victim, and thus subjects
    potential defendants to criminal prosecution only when their
    activities have detrimental impact."     
    Id. at 735.
    "A more specific standard is impractical because the
    conduct proscribed by this law necessarily varies according
    to its location and timing. . . . A disturbing the peace
    standard which attempted to define more precisely the
    levels of noise and types of conduct permitted in various
    places at varying times would be both underinclusive and
    overbroad. The void for vagueness doctrine does not
    require this result. Rather, for offenses such as this, it
    permits the use of a normative standard which informs a
    potential defendant that his common sense in most cases
    will define proscribed conduct" (emphasis added).13
    
    Id. Similar statutes
    have withstood challenges for vagueness.
    13
    See Commonwealth v. Sullivan, 
    469 Mass. 621
    , 630 (2014), quoting
    Commonwealth v. Reyes, 
    464 Mass. 245
    , 249 (2013) (addressing
    accosting or annoying person of opposite sex in violation of
    G. L. c. 272, § 53; "legislative language need not be afforded
    'mathematical precision' in order to pass constitutional
    muster'"); Commonwealth v. Daly, 
    90 Mass. App. Ct. 48
    , 51
    (2016), quoting 
    Orlando, 371 Mass. at 734
    (animal cruelty
    statute, G. L. c. 272, § 77, "sets forth a perhaps 'imprecise
    but comprehensible normative standard'" which is sufficiently
    exacting when viewed in context and in conjunction with case
    law); Commonwealth v. Nee, 
    83 Mass. App. Ct. 441
    , 449-450 (2013)
    (addressing common-law crime of affray; "person of common
    intelligence would have little difficulty understanding" conduct
    that law proscribes). Similar analysis and results have
    occurred regarding the interpretation of reckless endangerment
    of a child under G. L. c. 265, § 13L, see Commonwealth v.
    Figueroa, 
    83 Mass. App. Ct. 251
    , 265-266 (2013); open and gross
    lewdness and lascivious behavior under G. L. c. 272, § 16, see
    Commonwealth v. Coppinger, 
    86 Mass. App. Ct. 234
    , 235-239
    (2014); and indecent assault and battery on a child under the
    age of fourteen under G. L. c. 265, § 13B, see Commonwealth v.
    Rosa, 
    62 Mass. App. Ct. 622
    , 626-627 (2004).
    13
    There certainly will be circumstances involving location
    and timing, within which a specific distance to stay away from a
    fixed location will be adequate to maintain a safe haven for the
    protected party.   However, there are certainly also locations
    within which a general stay-away order is more appropriate to
    provide a safe haven for the protected party.   The person
    ordered to stay away is required to conduct themselves so as not
    to contact or abuse the protected party.14
    We do not think that the preferred practice should be to
    require the trial judge to determine a specific distance that
    the abuser must stay away from the protected person's residence
    or workplace.   Rather, the decision whether to impose a specific
    distance, if any, should be left to the sound discretion of the
    trial judge, who is in the best position to determine what the
    14A defendant in Pennsylvania challenged, for vagueness,
    the statute punishing the failure of a disorderly person to
    disperse upon official order. See Commonwealth v. DeFrancesco,
    
    75 Pa. D. & C. 2d
    502, 508 (1975). The defendant argued that he
    could not know "when he ha[d] satisfactorily dispersed." 
    Id. The court
    held that adequate dispersal occurs "when he is no
    longer a threat to cause substantial harm, serious
    inconvenience, annoyance or alarm. The time and distance may
    vary under the particular circumstances surrounding the
    incident, but we believe that it is clear to any person of
    reasonable intelligence that he has not dispersed if he remains
    in a position that poses the threat and danger the statute seeks
    to prevent." 
    Id. 14 circumstances
    require to create a safe haven for the protected
    party.15
    Here, the defendant argues that the stay-away order could
    only be violated by her intruding onto the property of the
    victim's residence.16   We reject this contention.   When the
    defendant drove her vehicle onto Hall Street and parked near and
    in clear sight of the victim's residence at 3 A.M., it seems
    clear that she intended to confront the victim.17    Her presence
    15We consider, here, a judicial order requiring the
    defendant to "stay away from the plaintiff's residence." The
    statute, G. L. c. 209A, § 3 (c), allows the court to order the
    defendant "to vacate forthwith and remain away from the
    household." For the purpose of our construction of the
    legislative purpose of c. 209A, we perceive no difference
    between the terms "stay away from" and "remain away from." Both
    terms promote the core purpose of the abuse prevention order and
    the statute, to create and maintain a safe haven from the threat
    of continued abuse. See 
    Gordon, 407 Mass. at 346
    -347.
    16The defendant seems to be arguing that the stay-away
    order could only be violated by means of a criminal trespass.
    Such an argument fails simply because the Legislature has
    enacted two separate and distinct statutes, i.e., criminal
    trespass (G. L. c. 266, § 120) and abuse prevention (G. L.
    c. 209A, § 3), which serve to effectuate different purposes.
    See generally State v. Gilley, 
    135 N.C. App. 519
    , 527-530 (1999)
    (distinguishing between North Carolina's domestic criminal
    trespass statute and domestic violence protective order statute
    while analyzing double jeopardy clause).
    17"While intent is an element of criminal contempt
    proceedings," G. L. c. 209A, § 7, has no such requirement.
    
    Delaney, 425 Mass. at 596
    . A conviction of violating an order
    issued pursuant to c. 209A requires proof "beyond a reasonable
    doubt that the defendant knew of the order. . . . Th[e] statute
    . . . requires no more knowledge than that the defendant knew of
    the order. We decline to read any additional mens rea
    requirements into the statute." 
    Id. at 596-597.
    However, "[a]
    15
    on the victim's street near the victim's residence was not an
    accident, mistake, or otherwise the result of innocent conduct.
    This conduct violated the c. 209A order's directive to stay away
    from the victim's residence.
    Next, the defendant argues that the judge committed
    reversible error when he provided the supplemental instruction
    in response to the jury's question regarding the "legal
    definition of stay away from the plaintiff's residence."      Where,
    as here, the defendant failed to object to the instruction at
    trial, we review the instruction to determine whether any error
    in the instruction created "a substantial risk of a miscarriage
    of justice."    Commonwealth v. Freeman, 
    352 Mass. 556
    , 564
    (1967).
    "The proper response to a jury question must remain within
    the discretion of the trial judge, who has observed the evidence
    and the jury firsthand and can tailor supplemental instructions
    accordingly."   Commonwealth v. Monteagudo, 
    427 Mass. 484
    , 488
    (1998), quoting Commonwealth v. Waite, 
    422 Mass. 792
    , 807 n.11
    long-standing common law principle requires that, in the absence
    of specific words saying so, it is not supposed that the
    [L]egislature intended to make accidents and mistakes crimes"
    (quotation omitted). 
    Collier, 427 Mass. at 388
    . "The policies
    that are advanced by means of the remedies available under
    c. 209A do not require that restrained parties be convicted for
    what would generally be considered innocent activities. To hold
    otherwise would incorporate into the statute a concept of strict
    liability, and there is no basis for believing that this was the
    Legislature's purpose." Commonwealth v. Raymond, 54 Mass. App.
    Ct. 488, 493 (2002).
    16
    (1996).   Here, even if the instruction was error, it did not
    create a substantial risk of miscarriage of justice.
    In the future, however, it would be better practice for the
    judge to explain to the jury what the stay-away order is
    intended to accomplish.    Such instruction would assist the jury
    in applying their common experience, in determining whether the
    defendant has violated the purpose of the order.       The distance
    will vary under different circumstances and can only be
    determined, as will a violation of the order, by what is
    necessary to prevent the defendant from contacting or abusing
    the protected party.18    The stay-away order is violated not only
    when a defendant actually commits an act of contacting or
    abusing the protected party, but also when the defendant is
    positioned within sufficient proximity to the property so that
    he would be able to contact or abuse the protected party if that
    party were on the property or entering or leaving it.       See
    Commonwealth v. Goldman, 94 Mass. App. Ct.        ,   (2018);
    Commonwealth v. Watson, 94 Mass. App. Ct.     ,       (2018).   The
    protected party need not be present for a violation of the order
    to occur.
    3.   Arrest testimony.   Finally, we conclude that there is
    no merit in the defendant's contention that testimony about her
    18Each of these prohibitions can be accomplished, under the
    circumstances, by the potential for physical, visual, or vocal
    contact.
    17
    arrest created a substantial risk of a miscarriage of justice.
    The police officer testified that he arrested the defendant, and
    that at the defendant's booking she gave her name, birthdate,
    and address.   The officer identified the defendant by comparing
    her appearance to her registry of motor vehicles photograph.
    See Commonwealth v. Crayton, 
    470 Mass. 228
    , 242 (2014)
    (identification testimony of arresting officer admissible to
    prove defendant "is the person who was arrested for the charged
    crime").   The defendant also attacked the adequacy of the police
    investigation, thereby placing her arrest at issue.   See
    Commonwealth v. Mitchell, 
    89 Mass. App. Ct. 13
    , 27 (2016);
    Commonwealth v. Philyaw, 
    55 Mass. App. Ct. 730
    , 733 (2002)
    ("officer should not be put in the false position of seeming
    just to have happened upon the scene," but should be allowed to
    explain conduct [quotation omitted]).   Finally, the judge's
    instructions would have countered any possible prejudice that
    could have flowed from evidence of the defendant's arrest.     The
    judge instructed the jury on the presumption of innocence on
    three separate occasions.   He specifically instructed that "[a]
    complaint against the defendant's [sic] only an accusation.
    It's not evidence."   There was no substantial risk of a
    miscarriage of justice here.
    Judgment affirmed.