Opinion
15-P-410
02-05-2016
COMMONWEALTH v. NAVY TEP.
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 appeal from his conviction of intimidation of a witness, the defendant contends that the evidence was insufficient to prove his intent to intimidate. We conclude that the evidence was adequate to support the verdict, and affirm.
In a challenge to the sufficiency of the evidence, we ask whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (quotation omitted). Circumstantial evidence is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Casiano, 70 Mass. App. Ct. 705, 707 (2007). Inferences drawn from circumstantial evidence "need only be reasonable and possible; [they] need not be necessary or inescapable." Id. at 708, quoting from Commonwealth v. Merola, 405 Mass. 529, 533 (1989). The element of intent is most often proved by circumstantial evidence. Commonwealth v. Rosario, 83 Mass. App. Ct. 640, 643 (2013).
The defendant contends that he was merely voicing frustration, and that the evidence is insufficient to prove that he had the specific intent to intimidate the victim. We disagree. The incident occurred shortly after the victim made a statement to the police that the defendant's girl friend had assaulted her mother. The defendant tailgated the victim. When the victim stopped at a gasoline station, the defendant also stopped, approached the victim, and stood about two feet away from her. The defendant then cursed at the victim, called her a snitch, and told her to mind her own business. He told her to watch her back and said she would regret what she did. He also told her to "say good-bye" to her dog. The victim interpreted these statements as a threat, so she took a photograph of the defendant's car and contacted the police.
The defendant was present in the house during the assault and when the victim made her report to police.
Taken together, these facts -- especially the insinuations of future harm to the victim and her dog -- could lead a rational fact finder to conclude that the defendant intended to intimidate the victim. The fact that the victim allowed the defendant to make use of her AAA membership one month later (during a trip where the defendant was not permitted to speak to the victim) does not detract from the defendant's criminal intent at the time of his intimidation of the victim.
We note that, when he was questioned by police regarding the incident, the defendant denied that he had been at the gasoline station. A rational jury could construe the defendant's lie to indicate consciousness of guilt at the time of the incident.
Judgment affirmed.
By the Court (Green, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 5, 2016.