Opinion
16-P-587
04-28-2017
COMMONWEALTH v. Radames LORENZI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Radames Lorenzi, appeals his conviction of intimidating a witness, arguing that the Commonwealth presented insufficient evidence to prove that the victim, his wife, was a witness in a stage of a criminal proceeding. We affirm.
The defendant also was convicted of violating a restraining order. He does not challenge that conviction on appeal.
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After an incident of domestic violence between the victim and the defendant, the defendant was criminally charged, and, on June 20, 2015, the victim obtained a restraining order against him pursuant to G. L. c. 209A. As a result, he was ordered not to contact her. Then, on July 1, 2015, the defendant telephoned the victim from the Hampden County house of correction, where he was awaiting trial. During that telephone call, the defendant asked the victim if she was "going to [go] to court with [her] daughter for the trial," to which she responded that she was going to court and "was going to testify." The defendant became angry, and stated, in Spanish, "this is not going to stay like this." The victim then hung up the telephone and contacted the jail to report the incident. After an investigation, the defendant was charged with violating the restraining order and intimidating a witness.
Prior to the start of the trial, the Commonwealth moved in limine to admit evidence of the underlying criminal case for the "sole purpose of proving ... witness intimidation." The defense promptly objected, arguing that it was not "fair to [the defendant] for any kind of questioning about any pending court criminal matter." The judge limited the admission of evidence related to the criminal proceeding to the fact that there was a criminal case pending, but advised the Commonwealth that no specific details about the case could be admitted. The Commonwealth subsequently had the victim testify only to the existence of the pending criminal case. Both the defendant and the victim also testified about their pending divorce proceedings. At the close of the Commonwealth's case, and after the close of all evidence, the defendant moved for a required finding of not guilty. The trial judge denied both motions.
In reviewing the denial of motions for a required finding of not guilty, "we must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged." Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), quoting from Commonwealth v. Sandler, 368 Mass. 729, 740 (1975). Further, to sustain a conviction for "witness intimidation under G. L. c. 268, § 13B, the Commonwealth must prove beyond a reasonable doubt that ‘(1) the target of the alleged intimidation was a witness in a stage of a criminal proceeding, (2) the defendant wilfully endeavored or tried to influence the target, (3) the defendant did so by means of intimidation, force, or threats of force, and (4) the defendant did so with the purpose of influencing the complainant as a witness.’ " Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 612-613 (2007), quoting from Commonwealth v. Robinson, 444 Mass. 102, 109 (2005). On appeal, the defendant challenges only the proof on the first element, claiming that the testimony failed to adequately distinguish the divorce case from the criminal case. We disagree.
Here, based on the testimony of the victim and the uncontested fact that the defendant called her from jail, the jury could infer that the pending criminal case was the subject of the conversation. The victim also testified that there was an open case involving her and the defendant, and that she was set to testify against him. Jurors likely would understand that testifying "against" someone would be in the context of a criminal, not a civil divorce, proceeding. Furthermore, the defendant also testified about "the pending case" separate from the divorce case. Taking all the evidence together, viewed in the light most favorable to the Commonwealth, the Commonwealth presented sufficient evidence that the victim was a witness in a stage of a criminal proceeding.
The judge did not err in denying the defendant's motions for a required finding of not guilty.
Judgment affirmed.