Opinion
19-P-1106
05-05-2020
COMMONWEALTH v. ROBERTO ARROCHO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted after a bench trial of two counts of witness intimidation, under G. L. c. 268, § 13B, and two counts of threatening to commit a crime, under G. L. c. 275, § 2. The gist of the Commonwealth's case was that the defendant had threatened two employees of the Department of Children and Families (DCF), after they had conducted an emergency removal of the defendant's one year old child and three other siblings. On appeal, the defendant argues that there was insufficient evidence of a specific intent to threaten or intimidate. We affirm.
Background. The judge could have found the following facts. DCF removed the children from the defendant's custody in November of 2016. There were ongoing court proceedings thereafter, which continued into June or July of 2017. The charges of witness intimidation concerned two DCF employees involved in the initial removal and the subsequent court proceedings -- Lorrie Silano and Christopher Benson. Both Silano and Benson testified at trial.
Benson testified that he was a DCF social worker assigned to the defendant's matter from June of 2015 through the end of December of 2016. On December 1, 2016, Benson observed the defendant in an altercation with another individual at the court house, after the court had continued the "72-hour hearing" regarding the removal of the children. During that altercation the defendant threatened to kill the individual, and eventually left the court house under escort. That same day the defendant left Benson a voicemail in which the defendant stated, among other things, that "he was being triggered by DCF. That DCF messed him up when he was growing up. . . . [T]hat he was having homicidal and suicidal thoughts and that he would be seeing me soon, Christopher Benson."
The defendant left a second voicemail for Benson on or about December 23, which repeated that he was having "homicidal and suicidal thoughts," and went on to say "that he couldn't get me [Benson] out of his head. That he was not going to see his daughter again. That he was writing a goodbye letter to her, and he knew what he had to do, and he was going to see me [Benson] soon." As a result of these calls, a police detail was assigned to the DCF building where Benson and Silano worked, and Benson was reassigned away from the defendant's case and relocated within the DCF building.
Silano testified to similar interactions with the defendant. In November of 2016 she was the DCF's area program manager, and was involved in the defendant's case and the decision to remove the children. Silano had several face-to-face encounters with the defendant, during which he was angry and, she believed, threatening. Beginning on November 16 and continuing into January of 2017, Silano received four or five "aggressive" voicemails from the defendant. Although "rambling," the messages stated that the defendant "knew who was involved in taking his daughter. That he would harm DCF staff involved." The voicemails identified Silano and Benson by name.
The judge convicted the defendant of two counts each of witness intimidation, see G. L. c. 268, § 13B, and threats to commit a crime, see G. L. c. 275, § 2.
Discussion. At the time of the offenses, G. L. c. 268, § 13B, as amended through St. 2010, c. 256, § 120, made it a crime to willfully threaten physical or emotional injury to, or to intimidate, "a person who is furthering a civil or criminal proceeding . . . with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby[.]" The defendant argues that the facts adduced at trial were insufficient for the judge to find a violation of this statute -- in particular, that there was insufficient evidence that the defendant specifically intended to threaten physical harm. We disagree.
The Legislature has since amended § 13B. See St. 2018, c. 69, § 155.
The defendant only raises arguments with respect to the witness intimidation convictions. He does not address the convictions for threatening to commit a crime. Any issues relating to the latter convictions are thus waived. See Commonwealth v. LeFave, 430 Mass. 169, 170 (1999).
When we review the sufficiency of the evidence, the "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" (quotation and citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "In such cases, inferences [drawn by the fact finder] need not be necessary, only reasonable and possible." Corson v. Commonwealth, 428 Mass. 193, 197 (1998).
Applying the above standard, here the evidence was plainly sufficient. To begin, the defendant's voicemails specifically referenced "homicidal" thoughts, and specifically identified each of Benson and Silano as persons that he was upset at because of their involvement in the removal of his child. An objectively reasonable person, receiving those voicemails, could certainly understand them as threatening "physical harm" to Benson and Silano. The judge as fact finder could so find.
The defendant urges that there was no evidence that the defendant specifically intended to threaten or intimidate, but rather that his statements should have been taken, in context, merely as the ramblings of a distraught parent who had never been, and would not be, physically violent. Such arguments, however, were for the fact finder. Specific intent need not be proved by direct evidence, but can be inferred entirely from circumstantial evidence. Commonwealth v. Berendson, 73 Mass. App. Ct. 395, 397 (2008). The defendant had a clear motivation to threaten the victims, given their involvement in removing the children. As an appellate court, we cannot say, on the evidence presented, that the judge's determination was beyond that available to a reasonable fact finder.
There was sufficient evidence concerning the remaining elements of witness intimidation as well. In particular, the defendant's statements were made to Silano and Benson at a time when they were actively involved in civil proceedings regarding the defendant's child. Indeed, the defendant's actions resulted in having Benson assigned away from his case.
Judgments affirmed.
By the Court (Meade, Ditkoff & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 5, 2020.