Opinion
16-P-185
07-27-2017
COMMONWEALTH v. William E. VILLANUEVA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial, the defendant was convicted of criminal harassment pursuant to G.L.c. 265, § 43A(a ), based on a series of text messages he sent over a two-hour period to the victim. On appeal, he claims that the evidence was insufficient to prove that he committed three separate acts of harassing conduct over a period of time, as required by the statute. For the reasons that follow, we affirm.
He also was found guilty of threats to commit a crime, G.L.c. 275, § 2, but does not appeal from that conviction.
Background. We recite the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On January 1, 2014, the victim, whom we shall call Mary, met the defendant while shopping at a Walmart store in Fairhaven. The two engaged in some polite conversation. At a certain point, the defendant asked Mary if she had a boy friend and then requested her telephone number. Mary gave the defendant the number of her cellular telephone because she felt nervous. The defendant tried the number and Mary's telephone rang. He then asked Mary where she lived. She replied that she lived on Smith Street, but she did not give her full address. That night, the defendant telephoned Mary twice and sent her a number of text messages. Mary sent a text message in response to the telephone calls telling the defendant that she was with her family. She ignored the text messages.
The defendant and Mary had no further contact until January 13, 2014, when the defendant sent Mary the following text messages between 4:24 A.M. and 4:37 A.M. :
4:24 A.M. : "Hey u FAT FucKEN CUNT, when I see u, am fucken ur shitt upp."
4:25 A.M. : "N when I see ur car, am settin it ON fire too BiTcH, lmfaooooo."
4:27 A.M. : "Hey When u sit down, without a shirt n bra. Look DOWN at ur Rolls at ur belly n see how many u have, lmfaooo."
4:28 A.M. : "How many, like 3. Lol, let me stop, cause I can't stop laughin tho."
4:29 A.M. : "I feel bad for ur ass, cause I don't forgitt faces. So ill be seein u soon."
4:33 A.M. : "So-yeah I work at a Fish House gittin paid $650.00 per week. N I have my own house by tha South End Beach. I think am doin better then u, with jus ljob tho u fucken CUNT."
4:35 A.M. : "U must always Smell like FiSh when u wake up. Look at urself ur fat, ur not a model tho. Fat bitches r only good enough for stuffin thea mouth all tha tim with food n COCK too, lol."
4:37 A.M. : "Peace n goodluck PuTA, lmfaoooo."
An image of an individual wearing a costume mask accompanied this message.
Mary did not read the messages until later that morning. At 6:10 A.M. , she replied:
"You don't even know me!? I don't know you I don't even know your name! Don't threaten me. Your going to fuck me up and set my car on fire because I don't want to talk to a stranger? Wth is wrong with you? Just delete my number like I thought you did and leave me alone!?"
The defendant responded immediately by sending three more text messages between 6:11 A.M. and 6:13 A.M. :
6:11 A.M. : "Cunt."
6:12 A.M. : "Smith st. Baby."
6:13 A.M. : "Well why did u even give me ur numba for?, if am a stranger. U make no sense for a sexy white gurl tho."
Then, at 6:15 A.M. , the defendant sent Mary a photograph of a penis, after which Mary replied:
6:15 A.M. : "K one min your telling me I'm a fat cunt next your calling me sexy. I've never had someone I didn't know what so ever ask for my number so I said ok because I was nervous and I just got back with my bf. You just need to leave me alone I really don't want to be threatened at 4 in the morning."
The defendant's last communication, also sent at 6:15 A.M. , was a photograph of himself smiling.
Mary testified that she felt scared when she read the defendant's text messages. Due to her fear, she woke up her cousin, with whom she lived, and asked her to sleep with her. She alerted her mother and stepfather and reported the incidents to the police. For the following two months, Mary carried a knife for protection and arranged to have someone accompany her in and out of her house.
Discussion. General Laws c. 265, § 43A(a ), as amended by St. 2010, c. 92, § 10, prohibits "willfully and maliciously engag[ing] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress." The defendant claims that his motion for a required finding of not guilty should have been allowed because the Commonwealth failed to prove that he engaged in a series of criminally harassing acts over a period of time. Instead, he claims, the evidence established one continuous act of criminal harassment. The Commonwealth asserts that each one of the thirteen text messages sent by the defendant constitutes a separate and distinct act of harassment.
Because the defendant challenges the sufficiency of the evidence on only one element of the offense, we need not address the evidence supporting the remaining elements. It suffices to note that the Commonwealth met its burden of proof on all of the statutory elements.
The statute does not define the meaning of the words, "pattern of conduct or series of acts" or "over a period of time." The Supreme Judicial Court has determined that the phrase, "pattern of conduct or series of acts," requires the Commonwealth to prove three or more incidents of harassment. See Commonwealth v. Welch, 444 Mass. 80, 89-90 (2005), overruled on another ground by O'Brien v. Borowski, 461 Mass. 415 (2012) ; Commonwealth v. McDonald, 462 Mass. 236, 240 (2012). In Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 523 (2017), we interpreted the phrase, "over a period of time," to "simply denote[ ] the passage of time." We rejected the defendant's contention that his conviction of stalking in violation of a restraining order could not be sustained because each of the alleged acts occurred on the same day. Giving the words, "over the course of time," "their usual and accepted meanings," Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977), we "s[aw] no reason to require a particular interval of time between acts. As long as the acts are separate, distinct, and separated by some interval, they occur ‘over a period of time’ within the meaning of the statute." Commonwealth v. Valentin, supra.
In that case, we dealt with the "closely related criminal stalking statute, G.L.c. 265, § 43." Commonwealth v. Welch, supra at 87.
We view the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the Commonwealth, to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. at 677-678. Here, there was evidence that the defendant sent eight text messages within a span of thirteen minutes. The intervals between each message varied from one to four minutes. With respect to this group of messages, it is clear that each one was separated by "some interval," but not so clear that the messages are separate and distinct from each other. We need not resolve this issue, because it matters not whether we treat the first group of texts as one or eight incidents of harassing conduct. As we have noted, Mary read the first group of text messages and replied to them about one and one-half hours after they were sent. Thereafter, the defendant sent three additional text messages, at least two of which qualify as harassing in nature. He then sent a photograph of a penis. When Mary again responded, the defendant sent a photograph of himself smiling. Viewing this sequence in the light most favorable to the Commonwealth, the judge could have found beyond a reasonable doubt that the defendant engaged in at least four separate and distinct acts of harassment separated by some interval. Cf. Commonwealth v. Kulesa, 455 Mass. 447, 451 (2009) ("defendant's two telephone calls to the victim's sister" on one afternoon were sufficient for two of three required acts).
A similar temporal analysis has been applied in cases under the criminal stalking statute, see Commonwealth v. Julien, 59 Mass. App. Ct. 679, 685 (2003) (three incidents, two falling on same day, sufficient for stalking statute), and the annoying telephone calls or electronic communications statute, see Commonwealth v. Strahan, 30 Mass. App. Ct. 947, 949 (1991) (eleven telephone calls within seven-minute period may have had harassing effect).
Judgment affirmed.