Opinion
11-P-1284
12-14-2012
COMMONWEALTH v. FRED CALEF.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The only issue in this appeal is whether there was sufficient evidence to support the defendant's convictions for assault and battery and intimidation of a witness. We affirm.
Taken in the light most favorable to the Commonwealth, the evidence and the reasonable inferences to be drawn therefrom proved the following. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). After a period of having had his sexual advances rejected by the victim (who was staying in his apartment), the defendant one night became enraged. When the victim reached for the defendant's cellular telephone (cell phone) in order to call police, the 250-pound defendant jumped on her and wrestled the phone out of her hand. The defendant grabbed the victim's neck and slammed her head against the floor several times. When the victim stood up, the defendant slammed her into the kitchen table, the kitchen sink, and the refrigerator and then jumped on her. While on top of the victim, who remained on the floor, the defendant called 911 to report falsely that the victim had pulled a knife on him. In the background of the 911 call, the victim can be heard screaming, '[G]et off me.' The defendant then got off the victim, threw a large kitchen knife across the room in order to buttress his story, and got back on top of the victim. When police arrived, they heard the victim saying, '[G]et off me.' After a delay, the defendant unlocked the door and the officers entered the apartment, where they saw the victim on the floor in a fetal position. The kitchen was in disarray. The defendant, who was agitated, yelling, and out of breath, claimed that the victim attacked him with a knife. The defendant called the victim various names, including 'bitch.' He also denied knowing where his cell phone was, despite that it was found by police in his pocket.
'An assault and battery is the intentional, unprivileged, unjustified touching of another with such violence that bodily harm is likely to result.' Commonwealth v. Dixon, 34 Mass. App. Ct. 653, 654 (1993). In order to prove witness intimidation, the Commonwealth was required to prove beyond a reasonable doubt that the 'defendant wilfully endeavored to influence or interfere with [a] witness . . . by intimidation, force, or threats of force.' Commonwealth v. Cohen (No. 1), 456 Mass. 94, 123 (2010), citing Commonwealth v. Conley, 34 Mass. App. Ct. 50, 53 (1993). Preventing a person from calling the police to report a crime falls within the crime of witness intimidation. Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226, 228-230 (1998). The evidence, as summarized above, amply supported beyond a reasonable doubt the elements of both crimes.
Judgments affirmed.
By the Court (Cohen, Katzmann & Wolohojian, JJ.),