Opinion
16-P-1178
04-26-2017
COMMONWEALTH v. Damon L. FLETCHER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Damon L. Fletcher, appeals from his conviction by a jury in District Court of intimidation in violation of G. L. c. 268, § 13B. The only issue on appeal is whether the Commonwealth presented sufficient evidence to permit the jury to find beyond a reasonable doubt that the defendant acted with intent to intimidate. We affirm.
The jury acquitted the defendant of assault and battery causing serious bodily injury and assault and battery on a family or household member.
We review the evidence in the light most favorable to the Commonwealth to determine whether any rational jury could find the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). All that is required is that the evidence, and permissible inferences therefrom, be "of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt." Id. at 676, quoting from Commonwealth v. Cooper, 264 Mass. 368, 373 (1928).
The jury could have found the following facts. The victim had three children with the defendant. Following a five-day hospital stay, the victim was discharged and returned to her home where the defendant was staying and caring for their children. The defendant got upset with the victim and they argued. She felt threatened and worried he was going to physically hurt her. She took out her telephone and said, "I'm going to call the police ... [i]f you don't leave me alone." The defendant took her telephone away. The victim took her three children to her mother's house, where they stayed the night. The next day the victim reported the incident to police, and a criminal complaint issued.
The victim had been in the hospital following an incident where she alleged that the defendant struck her and injured her back. The defendant was acquitted of assault and battery charges related to this incident. See note 1, supra.
The defendant argues that the evidence that the defendant grabbed the victim's telephone to prevent her from calling the police did not rise to the level of witness intimidation. He emphasizes that after he took the telephone, the victim freely departed the house.
The defendant does not make any argument with regard to the other elements of intimidation.
"Intimidation requires ‘putting a person in fear for the purpose of influencing his or her conduct.’ " Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 100 (2015), quoting from Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998). "[A]n ‘action does not need to be overtly threatening to fall within the meaning of intimidation.’ " Ruano, supra at 101, quoting from Commonwealth v. Cohen (No. 1), 456 Mass. 94, 124 (2010). 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).
Here, viewing the evidence in the light most favorable to the Commonwealth, as Latimore requires, we conclude that the evidence was sufficient for the jury to find beyond a reasonable doubt that the defendant intended to intimidate the victim. The victim testified that she told the defendant she was going to call the police if he did not leave her alone and he grabbed her telephone. The jury could reasonably infer that the defendant took the victim's telephone in order to prevent her from calling the police. The jury could infer that the defendant acted "with the intent to impede, obstruct, delay, harm, punish or otherwise interfere" with a criminal proceeding or investigation. G. L. c. 268, § 13B(1), as amended by St. 2010, c. 256, § 120. The fact that the defendant was not successful and the victim later went to the police is beside the point because the act of intimidation need not be successful. Commonwealth v. Robinson, 444 Mass. 102, 109 (2005).
For the same reason, the fact that the victim later visited the defendant in jail or took telephone calls from him does not undermine the sufficiency of the evidence.
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Judgment affirmed.