COMMONWEALTH vs. PAUL P. MCKAY.

GREEN, J. At his trial on a charge of violating a "no contact" order issued under G. L. c. 209A, the defendant did not dispute that he had left a voice mail message on his former fiancée's answering machine. His defense consisted essentially of his contention that he had dialed her number by accident, by pressing her "speed dial" entry in his cellular telephone while intending to call a female friend with the same first name (whose entry in his list of stored numbers was immediately adjacent to his former fiancée's). In furtherance of that theory, the defendant requested, but was denied, an instruction to the jury on mistake or accident. Based on our conclusion that the defendant was entitled to instruction on his theory of mistake or accident, we reverse the conviction.

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Background. At trial, there was evidence to the following effect. On the evening of July 13, 2003, Foxborough police officers responded to a call arising from a dispute between the defendant and his former fiancée, Cynthia Whelahan, at the apartment they shared. The defendant was arrested and charged with assault and battery. [Note 1] Thereafter, the defendant moved out of the apartment and an abuse prevention order issued under G. L. c. 209A, prohibiting him from contacting Whelahan.

Five days later, on July 18, 2003, the defendant had lunch with a friend named Cynthia Bowman. During lunch, the defendant received a telephone call from the Foxborough police department on his cellular telephone, advising him that police were available to accompany him to his former apartment to retrieve his personal belongings. [Note 2] Bowman asked the defendant to call her after he had recovered his belongings. The defendant proceeded to the apartment, and retrieved his belongings without incident.

While driving from the apartment, the defendant dialed Whelahan's telephone number by means of pressing her "speed dial" entry on his cellular telephone. In Whelahan's apartment, her answering machine answered the call, and the defendant left a message. The precise phrasing of the message is a matter of some disagreement; the recorded message itself was not offered in evidence at trial. According to the defendant, he said,

"Hey, hi it's Paul. I just called to amuse you. Hey, can you say Tessa? I went, I got most of my things, the majority of what I really and [sic] wanted. I got my laptop so that's great. She's decided she's keeping a whole bunch of stuff and we'll have to fight about that later. At any rate, just called to say, hey so hey." [Note 3]

Whelahan called the Foxborough police department to report the message the defendant had left on her answering machine. Officer Scott Hodson (who previously had accompanied the

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defendant to the apartment) responded to the report and listened to the recorded message. At trial, after having his memory refreshed by looking at his police report, he described the message as:

"This is Paul. I called to amuse you. Can you say temper? I called to say hi. Hi." [Note 4]

The defendant testified that he dialed Whelahan's number by mistake and that he had intended to dial Bowman, as she had requested when he departed to retrieve his belongings. The defendant explained that Bowman's entry in the list of contacts he stored in his mobile telephone was immediately adjacent to Whelahan's, [Note 5] and that he was not fully attentive to the task of scrolling through the list of phone numbers because he was driving at the same time, with his car filled with personal effects, and that he was somewhat distracted by the disruption of moving out of his former apartment. He attributed to similar distracting influences his inattention to the fact that Whelahan's voice delivered the recorded greeting when the answering machine answered the call.

The trial judge charged the jury according to Instructions 5.61 and 3.051 of the Model Jury Instructions for Use in the District Court (1995), the former pertaining specifically to violations of abuse prevention orders under c. 209A [Note 6] and the latter

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relating generally to knowledge. [Note 7] The judge denied the defendant's request for instruction to the jury that they should find him not guilty if they found that he called Whelahan by mistake. [Note 8]

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Discussion. In Commonwealth v. Delaney, 425 Mass. 587 , 595-597 (1997), the Supreme Judicial Court considered and rejected a defendant's argument that, in order to support a conviction under G. L. c. 209A, § 7, the Commonwealth must show a "manifest intent" on the part of the defendant to violate the order. See Commonwealth v. Collier, 427 Mass. 385 , 388 (1998). As a foundational matter, the statute "requires no more knowledge than that the defendant knew of the order." Commonwealth v. Delaney, 425 Mass. at 596.

Subsequent cases, however, have clarified that a defendant will not be held criminally liable for violations over which he lacked control. For example, in Commonwealth v. Collier, 427 Mass. at 389, the court considered a defendant who encroached the limits of a restraining order while he was a passenger in a vehicle driven by another person, and concluded that "the Commonwealth is required to prove beyond a reasonable doubt an intentional act by the defendant which led to the violation of the c. 209A order." [Note 9] In Commonwealth v. Leger, 52 Mass. App. Ct. 232 , 237-238 (2001), we concluded that no criminal violation arises from telephone contact incidental to the defendant's

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exercise of a right, not prohibited under the order, to contact another person (the defendant's child) living in the same household as the party protected by the order (the child's mother). Compare Commonwealth v. Silva, 431 Mass. 194 , 198-199 (2000) (incidental telephone contact which degenerated into angry outbursts sufficient to support convictions). To similar effect is Commonwealth v. Finase, 435 Mass. 310 , 315 (2001), where the court suggested that "accidental, mistaken, or unknowing violations of the distance requirements of an abuse prevention order" are not criminal. Most recently, in Commonwealth v. Raymond, 54 Mass. App. Ct. 488 , 493 (2002), we held that "a defendant cannot be convicted of violating a 'no contact' order issued under c. 209A where the contact occurs in circumstances where the defendant did not know, and could not reasonably have been expected to know, that the protected person would be present," citing Commonwealth v. Wallace, 14 Mass. App. Ct. 358 , 364 (1982), for the proposition that "in the absence of specific language to the contrary, the Legislature does not intend to make accidents and mistakes crimes."

In the present case, the heart of the defendant's theory of defense was that his telephone call to his former fiancée occurred by accident. The Commonwealth suggests that the defendant should nonetheless be held accountable for his actions as intentional, because he could have done more to prevent the accident from occurring (by removing his former fiancée's entry from his list of stored numbers, exercising greater care in pressing the buttons on his telephone, or paying more attention to the voice mail greeting when his call was answered). The argument misses the point; the question is not whether the defendant exercised reasonable care (or, put another way, was negligent), but whether the defendant intentionally violated the c. 209A order. The defendant's act in the present case was voluntary in the sense that he intended to press a button on his telephone, but the effect of that voluntary act (if the defendant's characterization of the evidence is to be believed) [Note 10] was no more intentional than in the case of a defendant seated as a passenger in a vehicle being directed by another person, or a

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defendant who enters a building without knowledge of its occupants. [Note 11]

Both parties vigorously argued in their closings that the defendant's telephone call was (or was not) the result of an accident. However, without instruction on the point the jury were not informed that mistake or accident would absolve the defendant of criminal liability for the call he indisputably made to his former fiancée. The defendant is entitled to a new trial.

Other issues. We reject the defendant's claim that he is entitled to dismissal of the complaint by reason of the Commonwealth's failure to preserve the recorded voice mail message that was the subject of the alleged c. 209A violation. Even if the defendant's testimony regarding the content of the message is credited, rather than that of Officer Hodson, the defendant's version of the content of the message is not particularly exculpatory. Moreover, the defendant could have attempted to obtain, or otherwise to record and preserve, the message as readily as the Commonwealth at the time of his arrest, had he wished to present it at trial. [Note 12] Because the issues could recur in a retrial, we also express our views that testimony concerning the content of the voice mail message is not barred by the best evidence rule (which does not apply to tape recordings, see Commonwealth v. Duhamel, 391 Mass. 841 , 844 [1984]), and that Officer Hodson's testimony as to the content of the message was not hearsay, as the purpose for which it was offered related to the fact that it was made, and to whom, rather

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than to the truth of any matter asserted in it. See Commonwealth v. Sullivan, 410 Mass. 521 , 526 (1991). [Note 13]

Conclusion. The defendant's judgment of conviction on the charge of violation of a G. L. c. 209A restraining order is reversed, the verdict is set aside, and the case is remanded for further proceedings consistent with this opinion.

So ordered.