SJC hears argument over whether proximity can violate 209A stay‑away order

The Supreme Judicial Court heard argument in SJC13737, Skipper Carino, over whether the Commonwealth presented sufficient evidence to convict a man of violating a Massachusetts abuse‑prevention stay‑away order (G.L. c. 209A) based on his proximity to the protected residence.

Rachel Channa, attorney for the appellant, told the justices the Commonwealth “simply didn't elicit any testimony” showing what the defendant could have done from the spot where he was arrested, and argued that the jury would have had to “pile inference upon inference” to find the defendant could have abused or contacted the protected person from that location.

The case turns on how the court applies three related formulations used by appeals courts for a “stay‑away” violation: entering a protected property, taking actions that directly intrude on the identified property, or positioning oneself “proximate to the resident so that [the defendant] would be able to abuse or contact the plaintiff” if the plaintiff were present. Counsel debated whether, on the record here, the Commonwealth met its burden to prove the third formulation.

Why the argument matters

The outcome could refine how lower courts and juries evaluate evidence in 209A prosecutions that rest on proximity rather than a measured distance violation. The parties and justices discussed precedents cited in briefing—Watson (2018), O'Shea, Lattimore, Goldman and Telesenor—about whether mere vicinity is enough or whether a prosecutor must show affirmative proof of the defendant’s ability to make visual or vocal contact.

What the record shows

At trial, police officers arrested Skipper Carino while he was walking on a public sidewalk at the foot of a driveway; officers testified they believed he had come within what they mistakenly thought was a 100‑yard limit. Counsel agreed the record contains an aerial photograph and a defense photograph (identified at argument as Exhibit 4) and testimony that the two properties have abutting backyards.

Channa argued the Commonwealth presented no testimony about what could actually be seen or heard from the location where Carino was stopped, saying, “the Commonwealth simply didn't elicit any testimony…that from where Corino actually stood, he could have abused or contacted the plaintiff.” She emphasized that the defendant was walking on the sidewalk when arrested and that the police presence may have deterred any completed violation.

Assistant District Attorney Dylan Punch, arguing for Middlesex County and the Commonwealth, countered that the jury had evidence to infer contact was possible. Punch said the defendant “was approximately 200 feet from her residence,” and pointed to the aerial map and photographs showing the layout of the abutting backyards. He framed the inference as one a juror could reasonably draw from the images and the defendant’s admitted plan to approach the area to determine whether the protected person was home.

Key factual disputes raised at argument

- Line of sight and tree canopy: Punch argued the defense photograph shows the victim’s residence and at least one window; Channa and questioning justices highlighted heavy tree canopy in the photos and said neither party had elicited testimony about whether trees or structures would have blocked a view or muffled sound.

- Voice projection and ambient noise: The Commonwealth asserted a juror could infer a human voice might carry 200 feet, but defense counsel and at least one justice asked whether there was any evidence about ambient noise, the particular defendant’s voice, or other factors that affect audibility.

- Defendant’s intent and movement: The parties disputed how much the defendant’s stated plan (to approach and, by counsel’s account, trespass through an abutting yard to check if the protected person was home) bears on whether the Commonwealth proved the defendant “positioned himself proximate” for the forbidden purpose. Channa urged that because the defendant was still walking when stopped, intent alone did not prove he had reached a position from which contact or abuse was realistically possible.

Legal standards discussed

Both counsel and the bench referenced appellate decisions applying and refining the third “proximity” formulation for 209A violations. Channa repeatedly invoked the need to adhere to O'Shea and to avoid allowing mere vicinity to suffice; Punch relied on Watson and related appeals‑court decisions that articulated a flexible approach aimed at preventing a defendant from “standing on the edge of a boundary and observing someone’s comings and goings.”

Record evidence and limits

Counsel agreed the trial record includes two photos: an aerial view and a ground‑level photograph admitted during cross‑examination. Witnesses at trial testified about where officers arrested Carino (on the sidewalk at the driveway’s foot), but, per Channa’s argument, the record lacks testimony quantifying distances from specific arrest footprints to the residence, ambient noise measurements, or lay testimony about audibility from the arrest site. Channa argued those evidentiary gaps meant the jury had to resolve multiple inferences to reach a guilty verdict.

What the court asked

A justice pressed both sides on whether the appeals court in this case adopted a broader “refrain from approach” standard or whether the more tethered Watson/Goldman/Telesenor formulations control. The bench also questioned how the photographs in the record should be evaluated by a jury and whether the defense photo taken a month later was a fair and accurate representation of the scene.

No decision stated in transcript

The oral argument concluded without a ruling recorded in the provided transcript. The Supreme Judicial Court will issue a written decision after the justices confer.