Opinion
14-P-180
08-12-2015
COMMONWEALTH v. JOSEPH NICOLORO.
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
On September 11, 2012, after a jury-waived trial in District Court, the defendant was convicted of two counts of witness intimidation in violation of G. L. c. 268, § 13B. At the end of trial, the defendant made a motion for required findings of not guilty, which was denied. The defendant now appeals. We affirm.
One count was for intimidation of Renitte Hasson, and the other was for intimidation of Joshua Valasquez. For a conviction of witness intimidation, the Commonwealth must "prove that the defendant willfully engaged in intimidating conduct, that is, acts or words, that would instill fear in the reasonable person, and did so with the intent to impede or influence a potential witness's testimony." Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 535 (2010), citing Commonwealth v. Casiano, 70 Mass. App. Ct. 705, 709 (2007). See G. L. c. 268, § 13B, as amended through St. 2006, c. 48, § 3, providing in pertinent part as follows: "Whoever, directly or indirectly, willfully . . . intimidates . . . a witness or potential witness at any stage of a . . . criminal proceeding of any type . . . with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby, . . . with a . . . trial or other criminal proceeding of any type shall be punished . . . ."
When we review a denial of a required finding of not guilty, we view the evidence in the light most favorable to the prosecution and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Kelly, 470 Mass. 682, 693 (2015), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
1. The defendant first argues that it was error to deny his motion because there was insufficient evidence. He acknowledges that the Commonwealth established that the victims were witnesses in a criminal case, but argues it otherwise only showed that the defendant was staring and smoking across the street from the victims' place of work (Lizzy's Restaurant).
The defendant stipulated to that fact.
An action does not need to be "overtly threatening" to qualify as "intimidation." See Commonwealth v. Casiano, 70 Mass. App. Ct. 705, 708 (2007). The defendant mischaracterizes his conduct as doing nothing and argues that case law requires that he actually do something, such as photograph a victim and victim's family outside their home on the day of a hearing, see Commonwealth v. Rosario, 83 Mass. App. Ct. 640, 640 (2013), to be convicted. While "staring" alone may be insufficient to demonstrate a "sinister" purpose, see Commonwealth v. McDonald, 462 Mass. 236, 244 (2012), "[t]ime, place, and circumstances may be considered in determining whether sufficient evidence has been introduced to show that the defendant had the specific intent to influence witnesses." Commonwealth v. Drumgoole, 49 Mass. App. Ct. 87, 91 (2000). Here, looking at the reasonable inferences and the totality of the circumstances, and viewing the evidence in the light most favorable to the Commonwealth, we conclude that a rational trier of fact could have found that (1) the defendant stared at the two victims, for no less than twenty minutes, (2) at the restaurant where the victims work, the same location of two prior incidents, (3) while charges were pending against the defendant, for which the victims were witnesses, and a court date was scheduled a few days later, and (4) that this conduct was intimidating.
The first incident occurred on December 22, 2011, when the defendant approached female patrons at Lizzy's Restaurant, getting too close to them. Hasson and Velasquez then escorted the defendant from the restaurant while he verbally abused them. The second incident occurred on December 24, 2011, when the defendant drove by the restaurant several times honking and giving the victims "the finger" while staring at them.
The defendant suggests innocent explanations for his presence across the street from the victims' place of work. However, we do not consider these suggested innocent purposes in our analysis because we must view the evidence in the light most favorable to the prosecution. See Commonwealth v. Latimore, supra. Therefore, even if possible innocent explanations exist, "[i]t is sufficient that a reasonable fact finder could have inferred from the circumstances that [the defendant] did, indeed, intimidate [the witnesses]." Commonwealth v. Gordon, 44 Mass. App. Ct. 233, 236 (1998). "[I]t was for the [judge] to determine where the truth lies." Commonwealth v. Rosario, supra at 644 n.3.
2. Next, the defendant argues that the trial judge improperly admitted evidence of the two prior acts from December, 2011, because they were inadmissible propensity evidence and because they substantially predated the intimidation as well as the underlying case for which the victims were witnesses. While it is impermissible for the prosecution to introduce evidence of prior bad acts to "show bad character or propensity to commit the crime charged," Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 312 (2011), quoting from Commonwealth v. Baker, 440 Mass. 519, 529 (2003), the judge admitted this evidence to show the defendant's state of mind and intent, purposes for which such evidence is admissible. See Dodgson, supra.
The trial judge has discretion over questions of relevancy and prejudicial effect, see Commonwealth v. Carey, 463 Mass. 378, 388 (2012), and we uphold his decision unless he "made a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted). Because other bad acts evidence is inherently prejudicial, we review it with "a more exacting standard" and exclude it if its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk. Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014). The judge did not abuse his discretion in admitting evidence of the two prior incidents, because it was probative of the defendant's state of mind and intent in his intimidation of the witnesses. Furthermore, the evidence was not unduly prejudicial. These incidents provided context to the "staring" adding additional factors that give a "seemingly innocuous act[]" a "sinister connotation." Commonwealth v. McDonald, 462 Mass. at 243-244. That the incidents occurred several months before the conduct at issue does not make them inadmissible, as the evidence provided the fact finder with the full picture, see Commonwealth v. Munafo, 45 Mass. App. Ct. 597, 603 (1998), citing Commonwealth v. Chartier, 43 Mass. App. Ct. 758, 761 (1997), and served as "a clarifying function" of the state of mind and intent of the defendant. See Chartier, supra at 760-761.
Judgments affirmed.
By the Court (Cypher, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 12, 2015.