Commonwealth v. Housen (Lawyers Weekly No. 11-013-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 11‑P‑1798 Appeals Court COMMONWEALTH vs. OSCOE HOUSEN. No. 11‑P‑1798. Middlesex. November 7, 2012. ‑ January 25, 2013. Present: Kantrowitz, Berry, & Grainger, JJ. Armed Assault with Intent to Murder. Abuse Prevention. Practice, Criminal, Duplicative convictions, Lesser included offense. Indictments found and returned in the Superior Court Department on February 23, 2010. The cases were tried before Elizabeth M. Fahey, J. Matthew Bové for the defendant. Casey E. Silvia, Assistant District Attorney (Kerry A. Collins, Assistant District Attorney, with her) for the Commonwealth. GRAINGER, J. The defendant was convicted by a jury in the Superior Court on thirteen indictments arising out of his attack with a knife on his former girlfriend, Mary Smith,[1] and her male friend. On appeal, the defendant argues, inter alia, that (1) the evidence was insufficient to support his convictions of armed assault with intent to murder, (2) his convictions of multiple counts of violating a G. L. c. 209A abuse prevention order are duplicative because they resulted from “an unbroken course of conduct,” and (3) one of the convictions of violating a G. L. c. 209A abuse prevention order is duplicative as a lesser included offense of assault and battery in violation of an abuse prevention order under G. L. c. 265, § 13A(b)(iii). Background. We recite the facts relevant to the issues on appeal as the jury could have found them during the trial. The defendant began dating Smith in 2001. The relationship was intermittently violent. In 2008, after Smith expressed her desire to end the relationship, the defendant assaulted her with a hammer and threatened to kill himself. In 2009, Smith obtained an abuse prevention order (order) after the defendant sent her threatening letters. The order forbade the defendant from coming within fifty yards of Smith or any of her three minor children, ordered the defendant to refrain from abusing Smith, and ordered him to stay away from Smith’s place of work and residence. The order was still in place on January 4 and 5, 2010. On January 4, 2010, Smith encountered the defendant in the parking lot at her work. She felt sorry for the defendant, who said he was cold and hungry, and drove him to her home around 3:00 P.M. Thereafter, between 4:00 P.M. and 5:00 P.M., each of Smith’s three children arrived home separately. Later in […]