Opinion
13-P-1803
11-12-2014
COMMONWEALTH v. PETER B. POSTELL.
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 defendant, Peter B. Postell, was convicted by a jury of two counts of criminal harassment, subsequent offense § 43A(b). On appeal, he claims that the judge improperly questioned the witnesses and that the evidence was insufficient to prove criminal harassment. We conclude that the judge did not act improperly and that the evidence supported each element of the two counts of criminal harassment beyond a reasonable doubt.
The jury found the defendant not guilty of lewd and lascivious conduct.
The judge asked questions of the two victims, but his questioning was not excessive and did not demonstrate any partiality. See, e.g., Commonwealth v. Dias, 373 Mass. 412, 416 (1977), and other authorities cited by the Commonwealth in its brief at pages seventeen through eighteen. Discerning no error, we need not resolve the question whether any claim of error was preserved.
The evidence was sufficient, when viewed in the light most favorable to the Commonwealth, to meet the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). The Commonwealth was required to "prove that the defendant committed not less than three separate incidents of wilful and malicious conduct specifically directed at the victim . . . and . . . that a reasonable person would have suffered substantial emotional distress as a consequence of this conduct." Commonwealth v. O'Neil, 67 Mass. App. Ct. 284, 290 (2006). The evidence shows that the Commonwealth established four separate incidents of wilful and malicious speech and conduct directed at Nicholas Lewis and Kelly Lewis. For a recitation of the evidence and references to the record, see the Commonwealth's brief at pages five through eight, and, for a summary, see pages twenty-four through twenty-five. The defendant's argument that the conduct on May 29, 2011, was not directed at Nicholas Lewis and Kelly Lewis is contradicted by the evidence, especially, but not only, as it is placed in context by the evidence of his speech and conduct before and after May 29, 2011. Even if we were to accept the defendant's argument that the May 29, 2011, conduct was not directed at either Lewis, there remained three separate incidents, viewed in the light most favorable to the Commonwealth, from which a jury could find each element of harassment with regard to each victim. See the facts and authorities referenced in the Commonwealth's brief at pages twenty-six through thirty.
The defendant's argument that the August 1, 2011, incident directed at Kelly Lewis would not cause a reasonable person to suffer substantial emotional distress is plainly contradicted by the evidence. See facts and authorities recited in the Commonwealth's brief at pages thirty-two through thirty-three. The defendant's efforts on cross-examination did not erode this element.
Concluding as we do, that each incident would have caused a reasonable person to suffer substantial emotional distress, we need not reach the issue whether the Commonwealth must prove that every incident in the pattern or conduct or series of acts would have caused a reasonable person to suffer substantial emotional distress or whether the substantial emotional distress may be cumulative.
--------
The defendant's argument that the June 30, 2011, incident was not directed at Nicolas Lewis and that what conduct was directed at Nicolas Lewis, would not cause a reasonable person to suffer substantial emotional distress also fails. See the facts and authorities recited at pages thirty-four and thirty-five of the Commonwealth's brief.
Judgments affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
Clerk Entered: November 12, 2014.