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ALM GL ch. 209A, § 7 Page 62 witness because defendant's testimony that he did not know that the victim was in the residence would have been irrelevant, as his guilt did not depend on his knowledge of the victim's presence. Commonwealth v. Saladin (2008) 73 Mass App 416, 898 NE2d 514, 2008 Mass. App. LEXIS 1303, review denied (2009) 453 Mass. 1105, 902 N.E.2d 947, 2009 Mass. LEXIS 479. Although defendant was acquitted of a prior charge of assault with a dangerous weapon in connection with an incident against his brother, evidence of the prior charge was admissible in defendant's trial for violating an abuse prevention order obtained by the brother against defendant because the previous assault charge was introduced to show defendant's hostility and motive. Commonwealth v. Barboza (2010) 76 Mass App 241, 921 NE2d 117, 2010 Mass. App. LEXIS 125. Defendant's convictions of violating a ALM GL c 209A order were not duplicative of his conviction of criminal harassment, as the two crimes had different elements, and the conduct forming the basis of the criminal harassment charge predated service of the 209A order and violations thereof and thus was distinct from that forming the basis of the 209A order violations. Commonwealth v. Kulesa (2009) 455 Mass. 447, 917 NE2d 762, 2009 Mass. LEXIS 902. Defendant's conviction of violating a protective abuse order under ALM GL c 209A, § 7 did not violate due process as a telephone call between defendant and the victim provided adequate notice of the restraining order (RO), defendant's response to the information evidenced that defendant knew of the RO, and defendant violated the RO by calling the victim the next day. Commonwealth v. Melton (2010) 2010 Mass. App. LEXIS 1176. In a prosecution for violation of an abuse prevention order, a return of service completed by an out of state police officer did not fall under the official or public records exception, under ALM GL c 233, § 76, and Mass.R.Crim.P. 40, due to being maintained by the court, because the statute and Rule pertained to the authenticity of a record, which was a precondition to, not the equivalent of, admissibility. Commonwealth v. Shangkuan (2011) 2011 Mass. App. LEXIS 288. In a prosecution for violation of an abuse prevention order, a return of service completed by an out of state police officer was admissible without the officer's testimony to demonstrate defendant's knowledge of the order because (1) the completed return of service fell within an exception to the hearsay rule for public documents, as the return was prepared by an official in the performance of an official duty, and (2) the return's admission, absent the officer's live testimony or a prior opportunity to cross-examine the officer, did not violate the confrontation clause, as the primary purpose for which the return of service was created was to serve the routine administrative functions of the court system, and the return was not created to prove a fact at a potential future criminal trial, was not per se testimonial, and was not testimonial in fact. Commonwealth v. Shangkuan (2011) 2011 Mass. App. LEXIS 288. 10. --Jury instructions Judge was not required to include language on circumstantial evidence in jury instruction regarding elements of abuse. Commonwealth v. Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995 Mass LEXIS 359. At trial of defendant for violating abuse prevention order prohibiting defendant from contacting former wife in person or by telephone or otherwise, judge erred in refusing to instruct jury that it could find that defendant's contacts with former wife, which occurred in course of attempt to speak to daughter by telephone, were "incidental" and that if jury so found, such contacts did not constitute violation of ALM GL c 209A order. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761. Where ALM GL c 209A "no-contact" order prohibited defendant from contacting former wife but did not limit right of defendant to have contact with his children, judge should have instructed jury to consider whether defendant's telephoning of former wife with whom children lived, including repeated calls after wife hung up, was incidental to legitimate attempt to telephone daughter, and if so, that such incidental contact was not violation of ALM GL c 209A restraining order. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761.
ALM GL ch. 209A, § 7 Page 63 Given the evidence presented, the judge should have instructed the jury that a defendant could not be convicted for an inadvertent violation of the a "no-contact" order. Commonwealth v. Raymond (2002) 54 Mass App 488, 766 NE2d 113, 2002 Mass App LEXIS 478. It was error for the trial court to deny defendant's request for an instruction on accident or mistake based upon evidence presented at trial. Defendant admitted that he left a message on his former fiance's answering machine, but there was evidence that defendant left the message by mistake when he incorrectly dialed and thought he was leaving a message for his friend with the same name. Commonwealth v. McKay (2006) 67 Mass App 396, 853 NE2d 1098, 2006 Mass App LEXIS 960. Defendant was convicted of violating an abuse prevention order issued under ALM GL c 209A, § 7, by going to a residence where he and the victim used to live. An instruction on intent adequately conveyed to the jury the fact that the only intent required was that defendant voluntarily intended the act that constituted the violation. Commonwealth v. Saladin (2008) 73 Mass App 416, 898 NE2d 514, 2008 Mass. App. LEXIS 1303, review denied (2009) 453 Mass. 1105, 902 N.E.2d 947, 2009 Mass. LEXIS 479. In a prosecution for violateing an order of protection, as defendant was served with an order informing him of a hearing date for extension of a ALM GL c 209A order, he could not escape being charged with knowledge that the initial order was extended merely because he failed to attend the hearing on the extension of the order. Therefore, the trial court was not obligated to instruct the jury that defendant had to be made aware of the extended order. Commonwealth v. Kulesa (2009) 455 Mass. 447, 917 NE2d 762, 2009 Mass. LEXIS 902. 11. Penalties After wife took children out of Massachusetts, husband obtained legal custody of children under ALM GL c 209A, § 7. Commonwealth v. Beals (1989) 405 Mass 550, 541 NE2d 1011, 1989 Mass LEXIS 235. For violation of protective order issued pursuant to ALM GL c 209A, after being found guilty by jury, defendant sentenced to one year in house of correction, all but 30 days suspended. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 915, 1990 Mass LEXIS 197. Convictions of defendant and consecutive sentences on indictments for parental kidnapping and violation of ALM GL c 209A restraining order were not duplicative or violative of double jeopardy principles. Commonwealth v. Bachir (1998) 45 Mass App 204, 696 NE2d 948, 1998 Mass App LEXIS 513, review denied (1998) 428 Mass 1104, 702 NE2d 812, 1998 Mass LEXIS 613.
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