Commonwealth v. Marissa Work.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

                       COMMONWEALTH OF MASSACHUSETTS

                                 APPEALS COURT

                                                  24-P-1242

                                  COMMONWEALTH

                                       vs.

                                 MARISSA WORK.

               MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

        After a jury trial, the defendant was convicted of

 violating a harassment prevention order.            See G. L. c. 258E,

 § 9.   On appeal, she claims there was insufficient evidence to

 support her conviction and that the admission of the return of

 service violated her confrontation clause rights.              We affirm.

        1.   Sufficiency of the evidence.        When analyzing whether

 the record evidence is sufficient to support a conviction, an

 appellate court is not required to "ask itself whether it

 believes that the evidence at the trial established guilt beyond

 a reasonable doubt."       Commonwealth v. Hartnett, 72 Mass. App.

 Ct. 467, 475 (2008), quoting Commonwealth v. Velasquez, 48 Mass.

 App. Ct. 147, 152 (1999).        Nor are we obligated to "reread the
record from a [defendant]'s perspective."     Palmariello v.

Superintendent of M.C.I. Norfolk, 873 F.2d 491, 493 (1st Cir.),

cert. denied, 493 U.S. 865 (1989).    See Commonwealth v. Duncan,

71 Mass. App. Ct. 150, 152 (2008).    Rather, the relevant

"question is 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."    Commonwealth v. Latimore, 378 Mass. 671, 677

(1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

    When evaluating sufficiency, the evidence must be reviewed

with specific reference to the substantive elements of the

offense.   See Jackson, 443 U.S. at 324 n.16; Latimore, 378 Mass.

at 677-678.   To sustain the defendant's conviction for a

violation of a harassment prevention order, the Commonwealth

must prove that:     (1) a court had issued the order; (2) the

order was in effect on the date that the violation allegedly

occurred; (3) the defendant knew the pertinent terms of the

order; and (4) the defendant violated the order.    Commonwealth

v. Kurko, 95 Mass. App. Ct. 719, 721 (2019); Commonwealth v.

Raymond, 54 Mass. App. Ct. 488, 492 (2002).

    Here, the defendant takes issue with only the third element

based on her claim that the Commonwealth failed to produce the

person who served the defendant with the order.    We disagree

because service of the order placed the defendant on


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constructive, if not actual, notice of the order's existence and

its terms.

    At trial, a copy of the harassment prevention order was

entered into evidence as part of the Commonwealth's case.

Included with the order was the "Return of Service" section,

dated February 10, 2023.   This page is signed by a police

officer and a box is checked that states:    "I certify that I

have served a copy of this [o]rder upon the [d]efendant named in

this [o]rder by delivering a copy in hand to the [d]efendant."

Under our case law, this is sufficient evidence that the

defendant was on notice of the terms of the order.     See

Commonwealth v. Henderson, 434 Mass. 155, 164 (2001);

Commonwealth v. Crimmins, 46 Mass. App. Ct. 489, 491-494 (1999).

    The defendant's claim that the Commonwealth did not prove

her knowledge of the order because the return of service

document violated the confrontation clause does not inform the

sufficiency equation.   When considering the sufficiency of

evidence under Latimore, supra, our evaluation "is to be

measured upon that which was admitted in evidence without regard

to the propriety of the admission."     Commonwealth v. Sepheus,

468 Mass. 160, 164 (2014), quoting Commonwealth v. Farnsworth,

76 Mass. App. Ct. 87, 98 (2010).     In this light, there was

sufficient evidence that the defendant knew the pertinent terms

of the order because it had been served on her.


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    2.    Confrontation clause.   The defendant also claims that

because she was not allowed to confront the person who served

the harassment prevention order at trial, her Sixth Amendment

rights were violated.   We disagree.

    The resolution of this claim is controlled by Commonwealth

v. Shangkuan, 78 Mass. App. Ct. 827 (2011), where we held, in

the context of a G. L. c. 209A abuse prevention order, that the

"completed return of service is admissible under the public

records exception to the hearsay rule and that it is

nontestimonial for purposes of the confrontation clause."     Id.

at 828.   Indeed, in Melendez-Diaz v. Massachusetts, 557 U.S. 305

(2009), the United States Supreme Court held that "[b]usiness

and public records are generally admissible absent confrontation

not because they qualify under an exception to the hearsay

rules, but because —- having been created for the administration

of an entity's affairs and not for the purpose of establishing

or proving some fact at trial —- they are not testimonial."     Id.

at 324.

    Contrary to the defendant's claim, Commonwealth v.

Parenteau, 460 Mass. 1 (2011), does not change our conclusion.

In Parenteau, the Registry of Motor Vehicles certificate of

suspension or revocation, which was created after the criminal

complaint issued against the defendant, was plainly made for the

use at the defendant's trial as proof that his license had been


                                  4
revoked.   Id. at 8.   Here, the return of service, dated prior to

issuance of the criminal complaint and prior to the date of the

alleged violation, was not created to prove a future fact at the

defendant's trial, which renders it nontestimonial.    The

admission in evidence of the return of service did not violate

the defendant's confrontation clause rights.

                                      Judgment affirmed.

                                      By the Court (Meade, Walsh &
                                        Hodgens, JJ.1),



                                      Clerk


Entered:   October 3, 2025.




    1   The panelists are listed in order of seniority.


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