COMPLAINT received and sworn to in
the Newburyport Division of the District
Court Department on November 15, 1988.
On transfer to the jury session of
the Haverhill Division, the case was
tried before William H. Sullivan,
The Supreme Judicial Court on its
own initiative transferred the case
from the Appeals Court.
Abuse Prevention. Protective
Order. Evidence, Relevancy and
materiality, Redirect examination.
Words, "Abuse," "Vacate."
Discussion of G. L. c. 209A, with
respect to violations of protective
orders issued under § 3 thereof
and to the imposition of criminal
A protective order issued pursuant
to G. L. c. 209A, requiring the defendant
to "immediately leave and remain
away from the [marital] household"
was consonant with the terms of G.
L. c. 209A, § 7, requiring a
defendant to "vacate the household,"
with the result that the defendant
was properly found criminally liable
for violation of the order for returning
to the marital home for visits.
The evidence presented at the trial
of a complaint for violation of a
protective order issued under G. L.
c. 209A supported the jury's finding
that the defendant [***2]
failed to "remain away"
from the marital household as ordered,
and the defendant's motion for a required
finding of not guilty was properly
The definition of "abuse"
provided by G. L. c. 209A, §
1, was construed, consonant with the
common law definition of assault,
to mean an act placing another in
reasonable apprehension that force
may be used. [348-349]
The evidence presented at the trial
of a complaint for violation of a
protective order issued under G. L.
c. 209A supported the jury's finding
that the defendant's wife was in reasonable
apprehension that her husband might
physically abuse her, and the defendant's
motion for a required finding of not
guilty was properly denied.
No issue with respect to a criminal
defendant's motion for a mistrial
was presented for appellate review.
Evidence of a confrontation between
a criminal defendant and his wife
five days before he was arrested and
charged with violation of a protective
order issued under G. L. c. 209A,
was relevant and admissible at the
trial of the complaint for the violation
to show the wife's reasonable fear
of her husband. 
At a criminal trial the judge properly
admitted certain rebuttal [***3]
evidence on redirect examination where
the subject had been opened by defense
counsel on cross-examination.
There was no error in the jury instructions
at the trial of a complaint for violation
of a G. L. c. 209A protective order.
Julian Soshnick (Bruce Garr with him)
for the defendant.
Margaret J. Perry, Assistant District
Attorney, for the Commonwealth.
Liacos, C.J., Abrams, Nolan, Lynch,
& O'Connor, JJ.
On January 4, 1989, tried before a
jury of six in the Haverhill Division
of the District Court Department,
the defendant, Jonathan P. Gordon,
was found guilty of violating a protective
order issued pursuant to G. L. c.
209A (1988 ed.). He was sentenced
by the judge to one year in a house
of correction. n1 The defendant now
appeals from his conviction, asserting
various errors in the trial below.
We affirm the conviction.
n1 The judge ordered the defendant
to serve thirty days, and suspended
the remainder of the sentence.
A fine of $ 5,000 also was imposed,
but was reduced subsequently to $
500. The defendant sought a
stay of execution of his sentence
from a single justice of the Appeals
Court and a single justice of this
court, pending an appeal from his
conviction. Both requests for
a stay were denied.
The evidence submitted at trial warranted
the jury finding the following facts.
The defendant and Karen Gordon (Karen)
had been married for eleven years
when, on May 31, 1988, the couple
separated in anticipation of divorce.
On July 26, 1988, following a hearing
at which the defendant was present,
a judge of the District Court issued
an order pursuant to G. L. c. 209A
(209A order) requiring the defendant
"to refrain from abusing [Karen]"
and to "immediately
[*342] leave and remain
away from the [marital] household."
The order also awarded temporary custody
of the couple's two children to Karen
and directed the defendant to pay
$ 700 each month for the temporary
support of the children. This
order was to remain in effect from
July 26, 1988, to July 26, 1989.
Between July 26, 1988, and November
10, 1988, the defendant came to the
marital home on five separate occasions.
Generally, these visits were to see
his children. On November 10,
1988, the defendant telephoned Karen
and asked if she would type a paper
for a friend. She agreed, and
the defendant came to the house to
deliver the paper. During this
visit, the defendant and Karen became
involved in an argument when the defendant
[***5] learned that Karen had
been dating another man. The
defendant yelled at his wife in front
of their five year old son, calling
her a "bitch" and a "whore."
Karen testified at trial that, at
this time, she was "upset"
and felt "insecure"; she
stated that she "didn't know
what [the defendant] was going to
Five days later, on November 15, 1988,
the defendant returned to the house
unannounced. Karen's brother
and a neighbor were visiting at that
time, and Karen sent her neighbor
upstairs with the Gordons' older son
to telephone the police. The
defendant came to the outside of the
front door of the house and urged
Karen to let him in. He stated
that he wanted to talk, but Karen
did not respond or open the door.
The defendant said that Karen was
being "immature and ridiculous."
The defendant left a note on the front
door, returned to his automobile,
and started to back out of the driveway.
When Karen opened the door to take
the note, the defendant left his automobile,
walked up to the house, and stood
with a foot on the threshold, his
back resting against the front door,
holding it open.
At this point, two officers of the
Newbury police department arrived
at the house. Lieutenant [***6]
Rick Frappier ordered the defendant
away from the door and arrested him
for violation of the 209A order.
The other police officer went into
the house to speak with Karen, who
stated that the defendant
[*343] had not abused
her physically during his visit.
Lieutenant Frappier later filed a
report incident to the defendant's
arrest, which stated that "[the
defendant] did not appear to be abusive
nor did he make physical contact with
n2 The defendant did not testify,
and no witnesses were presented in
On appeal, the defendant contends
that the trial judge erred in denying
a motion [**917] for directed
verdict and a motion for mistrial.
The defendant also claims that the
judge impermissibly admitted irrelevant
and prejudicial evidence, and failed
to instruct the jury properly regarding
what acts would constitute a violation
of the 209A order. Finally,
the defendant argues that G. L. c.
209A, § 7, which makes criminal
the violation of certain sections
of a 209A order, fails to give clear
warning as [***7] to what activities
are proscribed. We address each
claim in turn.
1. Denial of the defendant's motion
for a required finding of not guilty.
At the close of the Commonwealth's
case, defense counsel moved for a
required finding of not guilty.
In support of the motion, defense
counsel argued that G. L. c. 209A,
§ 7, makes criminal only the
violation of a 209A order to "refrain
from abus[e]" or to "vacate
the household," and claimed that
the Commonwealth had failed to present
sufficient evidence to prove beyond
a reasonable doubt that the defendant
had either "abused" his
wife on November 15, 1988, or that
he had failed to "vacate"
the marital home by November 15, 1988.
The judge denied the defendant's motion.
In reviewing the denial of a motion
for a required finding of not guilty,
we must determine "'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' (emphasis
in original)." Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979),
quoting Jackson v. Virginia, 443 U.S.
307, 318-319 (1979). [***8]
See Commonwealth v. Merola, 405 Mass.
529, 533 (1989); Mass. R. Crim. P.
25 (a), 378 Mass. 896 (1979). In
this regard, we note that "[c]ircumstantial
evidence is competent to establish
guilt beyond a reasonable doubt
. . . [and] [a]n inference drawn
from circumstantial evidence 'need
only be reasonable and possible;
it need not be necessary or inescapable.'"
Commonwealth v. Merola, supra, quoting
Commonwealth v. Beckett, 373 Mass.
329, 341 (1977).
defendant's argument in support
of his motion for a required finding
of not guilty encompasses not only
a dispute as to the testimony presented
below and the inferences which reasonably
can be drawn therefrom, but it also
raises questions regarding the necessary
elements of a criminal violation
of G. L. c. 209A. Specifically,
the defendant claims that he cannot
be found to have "abused"
his wife in violation of G. L. c.
209A, § 7, unless he physically
harmed her or made some outwardly
threatening gesture which put her
in fear of "imminent serious
physical harm." In addition,
the defendant claims that a 209A
order to "vacate the household"
[***9] only requires him to
surrender his residency at the marital
home and does not prohibit him from
returning to the home for visits.
This court has not faced these issues
before. A short review of
the structure of G. L. c. 209A,
as it relates to the present case,
is in order.
Laws c. 209A, entitled "Abuse
Prevention," provides a statutory
mechanism by which victims of family
or household abuse can enlist the
aid of the State to prevent further
abuse. "Abuse" is
defined as "the occurrence
of one or more of the following
acts between family or household
members: (a) attempting to cause
or causing physical harm; (b) placing
another in fear of imminent serious
physical harm; (c) causing another
to engage involuntarily in sexual
relations by force, threat of force
or duress." G. L. c. 209A,
Under § 3 of c. 209A, "[a]
person suffering from abuse from
an adult or minor family or household
member may file a complaint in the
court requesting protection from
such abuse . . . ." The complainant
may request the court to issue orders
which: (1) "[order] the defendant
to refrain from abusing the plaintiff,"
(2) "[order] the defendant
forthwith the household,"
[***10] (3) "[award]
the plaintiff . . . temporary custody
of a minor child," (4) "[order]
the defendant to pay temporary support
for the plaintiff or any child in
the plaintiff's custody or both,"
(5) "[order] the defendant
to pay to the person abused monetary
compensation for losses suffered
as a direct result of . . . abuse,"
and (6) [**918] "[order]
the plaintiff's address to be impounded."
G. L. c. 209A, § 3 (a)-(f).
Any orders issued by the court are
for a fixed period of time not to
exceed one year. On the expiration
of an order, the plaintiff may move
for an extension, which the court
may grant if it is needed to protect
the plaintiff from abuse.
the court is entitled to issue any
of the orders which the complainant
may request under § 3, c.
209A appears to anticipate that
only a violation of an order to
refrain from abuse, or an order
to vacate the household, will represent
a criminal offense. Section
7 of c. 209A requires any order
to refrain from abuse or to vacate
the household to contain the statement:
"VIOLATION OF THIS ORDER IS
A CRIMINAL OFFENSE," and provides
that a violation of either of these
types of orders "shall be punishable
by a fine of not more than [***11]
five thousand dollars or by imprisonment
for not more than two and one-half
years in a house of correction or
both such fine and imprisonment."
In contrast, no specific criminal
sanctions are provided for violations
of 209A orders other than orders
to refrain from abuse or orders
to vacate the household. Furthermore,
no statements warning of criminal
liability for violations are required
for any 209A orders other than those
described in § 7.
Order to vacate the household.
The defendant argues that, while
the judge below issued a 209A order
requiring him to "immediately
leave and remain away from the [marital
household]," criminal liability
may attach for a violation of the
order only in so far as there is
a failure to "vacate the household,"
as is provided in § 7.
The defendant argues further that
the order to "vacate"
was satisfied when he surrendered
legal occupancy in the house, and
that § 7 did not require him
to "remain away" from
the house. Therefore, he concludes,
he cannot be found criminally liable
[*346] to the marital
home for visits, regardless of the
terms of the 209A order below.
We disagree. The defendant has
misconstrued the scope of the [***12]
term "vacate" as it is used
in c. 209A.
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." O'Brien
v. Director of the Div. of Employment
Sec., 393 Mass. 482, 487-488 (1984),
quoting Industrial Fin. Corp. v. State
Tax Comm'n, 367 Mass. 360, 364 (1975).
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 [***13] 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.
O'Brien v. Director of the Div. of
Employment Sec., supra at 488.
As we discussed earlier, c. 209A represents
a legislative response to the troubling
social problem of family and household
abuse in the Commonwealth. Judicial
orders issued pursuant to c. 209A
afford abused individuals the opportunity
to avoid further abuse and provide
them with assistance in structuring
some of the basic aspects of their
lives, such as economic support and
custody of minor children, in accordance
with their right not to be abused.
Of the types of orders allowed under
c. 209A, orders requiring an abusive
defendant to "refrain from
abusing" a family or household
member and to "vacate"
the [**919] household
have been accorded the most importance
by the Legislature, as is demonstrated
by the criminal sanctions prescribed
for violations thereof. The
significance attached to these two
types of orders is eminently reasonable,
[***14] in that they both
serve directly to support the statute's
primary goal of abuse prevention.
An order to "refrain from abus[e]"
serves the obvious purpose of putting
an abusive party on notice of the
possibility of criminal penalties,
thereby deterring further abuse.
An order to "vacate the household,"
on the other hand, 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.
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
authority of a judge to issue a
"vacate" order for a period
of one year. G. L. c. 209A,
§ 3 (b). See G. L. c.
266, § 120 (1988 ed.) (making
it a criminal trespass to "enter"
in violation of an order under G.
[***15] L. c. 209A).
The Legislature can be assumed to
know that opportunities for abuse
do not ebb or flow automatically
according to the pull of the legal
notion of occupancy; a true haven
from abuse exists only where an
abusive party has no right to enter
at any time.
209A order issued below, which required
the defendant to "immediately
leave and remain away from the [marital]
household" was entirely consonant
with the terms of G. L. c. 209A,
§ 7, requiring a defendant
to "vacate the
household." Accordingly, the
defendant may be held criminally
liable for the violation of the
209A order. n3
The defendant argues that, even
though his acts may have constituted
a violation of G. L. c. 209A, §
7, he cannot be held criminally
liable because the phrase "vacate
the household" was not sufficiently
explicit to give him clear meaning
of the activities proscribed under
§ 7 at the time of his arrest.
"We have not hesitated to relieve
defendants of criminal responsibility
where the law was so unsettled or
unclear that it did not provide
fair notice of what conduct was
forbidden." Commonwealth v.
Chretien, 383 Mass. 123, 132 (1981).
However, the 209A order below, which
carried the warning "VIOLATION
OF THIS ORDER IS A CRIMINAL OFFENSE,"
ordered the defendant to "immediately
leave and remain away from the [marital]
household" (emphasis added).
The terms of the order put the defendant
on notice as to precisely the range
of activity that was forbidden.
He cannot reasonably claim that
he was unaware that he risked criminal
punishment for failing to "remain
away" from the house.
The particularity of the terms of
the 209A order, of which the defendant
was well aware, leads us to reject
the defendant's request that we
apply our holding today in a prospective
manner only. See Commonwealth
v. Klein, 372 Mass. 823, 833 (1977).
evidence presented supported a conclusion
that the defendant failed to "remain
away" from the house in violation
of the 209A order. On such
evidence, the jury clearly were
entitled to find the defendant guilty
under G. L. c. 209A, § 7,
for violating an order to "vacate"
the house. The defendant's
motion for a required finding of
not guilty regarding the order to
"vacate" was appropriately
Order to refrain from abuse.
For the purposes of criminal punishment
under G. L. c. 209A, § 7,
a party violates an order to "refrain
from abus[e]" when he or she:
(1) "attempt[s] to cause or
caus[es] physical harm"; (2)
"place[s] another in fear of
imminent serious physical harm";
or (3) "caus[es] another to
engage involuntarily in sexual relations
by force, threat of force or duress."
G. L. c. 209A, § 1.
In the present case, there have
been no allegations that the defendant
either physically harmed or attempted
physically to harm his wife on the
date of his arrest. Furthermore,
there have been no allegations that
he caused his wife to engage involuntarily
in sexual relations. Therefore,
any claim of a violation of the
order to refrain from abuse must
[***17] based on an allegation
[**920] that the defendant
"plac[ed his wife] in fear
of imminent serious physical harm."
defendant claims that the test whether
such fear exists must be objective,
and that his actions on November
15, 1988, cannot be found to have
created an objective fear of "imminent
serious physical harm." In
support of his conclusion, the defendant
directs our attention to the fact
that, at trial, Karen did not testify
that she was in fear of "imminent
serious physical harm" at the
time of the defendant's visit, and
claims that the evidence presented
below demonstrates that he made
no outwardly threatening or menacing
gestures toward his wife.
relevant definition of "abuse"
provided by G. L. c. 209A, §
1, "placing another in fear
of imminent serious physical harm,"
closely approximates the common
law description of the crime of
assault. We must presume that the
Legislature was aware of the common
law definition of assault when it
provided a similar definition for
"abuse" in c. 209A.
Selectmen of Topsfield v. State
Racing Comm'n, 324 Mass. 309, 313
(1949). Accordingly, we turn to
the common law treatment of assault
for guidance in our examination
[***18] of c. 209A.
the common law, "it is well
established . . . that an act placing
another in reasonable apprehension
that force may be used is sufficient
for the offense of criminal assault."
Commonwealth v. Delgado, 367 Mass.
432, 437 (1975), and cases cited.
In determining whether an apprehension
of anticipated physical force is
reasonable, a court will look to
the actions and words of the defendant
in light of the attendant circumstances.
Id. at 436-437. See Commonwealth
v. Tarrant, 367 Mass. 411, 414-416
(1975). In a criminal assault, the
Commonwealth need not prove that
the victim was in fear. "[N]either
fear, nor terror nor apprehension
of harm is an essential ingredient
of the common law crime of assault."
Commonwealth v. Slaney, 345 Mass.
135, 139 (1962).
the present case, there was evidence
of a verbal outburst between the
defendant and Karen five days before
the incident in question, during
which the defendant called his
wife a "bitch" and a "whore."
Karen testified that, at this time,
she was "upset," and that
she "didn't know what [the
defendant] was going to [***19]
do next." At the next meeting
between Karen and the defendant,
on November 15, 1988, the defendant
arrived at the house unannounced,
and when Karen refused to respond
to the defendant's requests that
she open the door, the defendant
said that Karen was being "immature
and ridiculous." Despite Karen's
obvious unwillingness to speak with
him, the defendant left his automobile
when she appeared and prevented
Karen from closing the front door
by propping his back against it.
these circumstances, we cannot say
that a jury could not conclude beyond
a reasonable doubt that Karen entertained
a reasonable apprehension that her
husband might physically abuse her.
The fact that the defendant had
violated an order to remain away
from the house, the evidence of
the tension between the parties,
the previous verbal abuse by the
defendant, and the defendant's physical
actions in holding open the door
when Karen clearly desired to avoid
contact could reasonably be combined
by the jury to create a picture
of a volatile situation in which
the possibility of physical abuse
was present. Moreover, the
fact that the prosecutor did not
ask Karen whether she anticipated
physical abuse does not preclude
[***20] such a conclusion
on the part of the jury. The
jury were entitled to draw reasonable
inferences from the circumstantial
evidence described above.
See Commonwealth v. Walker, 401
Mass. 338, 342-343 (1987). The denial
of the defendant's motion for a
required finding of not guilty was
Denial of the defendant's motion
for a mistrial. The defendant
claims error in the denial of his
motion for a mistrial. The defendant
states his claim on appeal in conclusory
fashion and cites no legal authority
to support his claim. "This
is an insufficient appellate argument
and is [**921] not properly
before us. Mass. R. A. P.
16 (a) (4), as amended, 367 Mass.
921 (1975)." Commonwealth v.
Silva, 401 Mass. 318, 327 (1987).
3. Admission of evidence.
The defendant claims that the judge
erred by allowing the admission
of evidence regarding a confrontation
between Karen and the defendant
at the marital household on November
10, 1988. During this confrontation,
which was the last contact between
Karen and the defendant prior to
the visit of November 15, the defendant
learned that Karen had become involved
with [***21] another man.
He yelled at Karen, calling her
a "bitch" and a "whore."
The defendant claims on appeal that
evidence regarding this incident
was irrelevant to the material issues
in this case. We disagree.
relevancy of proffered evidence
depends on whether it tends to prove
some issue in the case on trial."
Commonwealth v. Chretien, supra
at 135. "Evidence need not
establish directly the proposition
sought; it must only provide a link
in the chain of proof." Commonwealth
v. Tobin, 392 Mass. 604, 613 (1984).
Evidence that the defendant was
angry with Karen for seeing another
man, and that he had called her
a "bitch" and a "whore"
during their last contact prior
to his arrest was relevant to proving
that Karen was in fear of her husband.
See, e.g., Commonwealth v. Mora,
402 Mass. 262, 267-268 (1988); Commonwealth
v. Person, 400 Mass. 136, 143 (1987).
Furthermore, such evidence provided
support for the prosecution's assertion
that Karen's fear of physical harm
was reasonable, because it had roots
in the defendant's outburst just
five days earlier. "[R]elevant
evidence should [***22]
be admitted unless there is a quite
satisfactory reason for excluding
it." Green v. Richmond, 369
Mass. 47, 59 (1975). n4 This evidence
was relevant and admissible.
See P.J. Liacos, Massachusetts Evidence
408 (5th ed. 1981 & Supp. 1985).
The defendant claims that the evidence
regarding the incident on November
10, 1988, was inadmissible because
it was unduly prejudicial, but he
provides no explanation. "We
accord the judge substantial discretion
in deciding whether . . . the prejudicial
implications of [relevant] evidence
outweigh its probative value."
Commonwealth v. Tobin, supra at
613. We perceive no unfair prejudice
to the defendant's case arising
out of the admission of this evidence.
There was no abuse of discretion.
The defendant also claims that the
judge improperly allowed the admission
of Karen's testimony that three
checks given her by the defendant
during their separation had "bounced."
This testimony arose in response
to questions by the [***23]
prosecution on redirect examination.
When the defendant objected to its
admission, the judge ruled that
the evidence was admissible because
defense counsel had raised the issue
of the checks during cross-examination
scope of redirect examination of
a witness is within the sound discretion
of the trial judge." Commonwealth
v. Maltais, 387 Mass. 79, 92 (1982).
"A defendant who claims, on
appeal, an abuse of discretion,
assumes a heavy burden." Id.
In this case, that burden has not
defendant had raised the issue of
the checks when he questioned Karen
as to whether one of the defendant's
prior visits had been for the purpose
of "bringing [Karen] a check
which [she] then took down to the
bank for deposit." In pursuing
this line of questioning, defense
counsel could have been attempting
to prove to the jury that an amiable
relationship existed between the
defendant and Karen, thereby casting
doubt on the prosecution's assertion
that Karen had reason to fear the
defendant. Karen's testimony
on redirect examination merely explored
in more detail a subject opened
up by defense counsel on cross-examination,
and served to rebut the [***24]
inference that the relationship
between the defendant and Karen
was without tension. See Commonwealth
v. Mandeville, 386 Mass. 393, 400
(1982). "The purpose of redirect
examination is to explain or rebut
adverse testimony or inferences
developed during cross-examination."
Commonwealth v. Hoffer, 375 Mass.
369, 375 [**922] (1978).
There was no error.
Jury instructions. The defendant
claims that the judge committed
reversible error in his instructions
to the jury and in his rejection
of two of the defendant's proposed
jury instructions. In essence,
the defendant's claims in this regard
suggest that the judge should have
instructed the jury that a failure
to remain away from the marital
home does not constitute a violation
of c. 209A. We have already
position. See section 1, supra.
There was no error in the jury instructions.
we perceive no error by the judge
in the trial below, the defendant's
conviction is affirmed.