Opinion
21-P-195
11-10-2022
COMMONWEALTH v. DANIEL KIM.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Daniel Kim, appeals from his convictions, after a Superior Court jury trial, of stalking, G. L. c. 265, § 43 (a); indecent assault and battery, G. L. c. 265, § 13H; witness intimidation, G. L. c. 268, § 13B; criminal harassment, G. L. c. 265, § 43A; and four counts of violation of a harassment prevention order, G. L. c. 258E, § 9. We conclude that there was sufficient, indeed abundant, evidence that the defendant's blog posts constituted true threats. Further concluding that the posited errors in the jury instructions did not create a substantial risk of a miscarriage of justice and that the prosecutor's charging decisions do not show prosecutorial vindictiveness, we affirm. 1. Sufficiency of the evidence. When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.'" Commonwealth v. Waller, 90 Mass.App.Ct. 295, 303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014). The defendant challenges the sufficiency of the evidence only insofar as he argues that, to the extent a charge was based on his blog communications, the evidence was insufficient to find that these communications were not constitutionally protected speech. In this regard, a communication is not constitutionally protected if, inter alia, it constitutes a "true threat." See Commonwealth v. Bigelow, 475 Mass. 554, 566 (2016). A true threat exists where a person "communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual." Kareem K. v. Ida I., 100 Mass.App.Ct. 902, 904 (2022), quoting Virginia v. Black, 538 U.S. 343, 359 (2003). A true threat includes "not only . . . direct threats of imminent physical harm, but . . . words or actions that -- taking into account the context in which they arise -- cause the victim to fear such harm now or in the future and evince an intent on the part of the speaker or actor to cause such fear." A.S.R. .K.A., 92 Mass.App.Ct. 270, 280 (2017), quoting Bigelow, supra at 566-567.
"In the usual case, whether a communication constitutes a threat or a true threat is a matter to be decided by the trier of fact." A.S.R., 92 Mass.App.Ct. at 278, quoting Bigelow, 475 Mass. at 567. In evaluating whether the defendant's conduct constitutes a threat, a "court will look to the actions and words of the defendant in light of the attendant circumstances." Commonwealth v. Welch, 444 Mass. 80, 88 (2005), quoting Commonwealth v. Gordon, 407 Mass. 340, 349 (1990). See Commonwealth v. Cullen, 79 Mass.App.Ct. 618, 622 (2011) (for sufficient evidence of threat "the totality of the defendant's behavior must be considered"). "The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered." Commonwealth v. Leonardo L., 100 Mass.App.Ct. 109, 115 (2021), quoting Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001). Here, the evidence was sufficient for a jury to find that the defendant's blog posts contained true threats made to place the victim in reasonable fear of death or bodily injury. See Commonwealth v. Chou, 433 Mass. 229, 234 (2001); Commonwealth v. Gupta, 84 Mass.App.Ct. 682, 687 (2014) ("Threatening letters may constitute stalking activity without the risk of immediate or imminent physical harm to the recipient"). At trial, the victim testified to the defendant's behavior in the summer of 2011, including how the defendant sexually assaulted her, "bombard[ed] [her] with emails and texts," and appeared at her home unannounced. It is within this context that the defendant's online blog must be understood. See A.S.R., 92 Mass.App.Ct. at 280.
A jury could reasonably find that many of the defendant's blog entries constituted true threats against the victim. The victim testified that blog posts contained photos of her and information concerning her personal whereabouts, and referenced her by her given name as well as "Ellie." The blog referenced the victim's impending death with posts such as, "Ellie RIP . . . May my beautiful and beloved Ellie rest in peace" and "Ellie need never fear this [death], because she will always be missed by me." In August 2013, a week before the harassment prevention order was set to expire, the defendant posted,
The victim testified that she saw some of the photos for the first time on the defendant's blog.
"Stand Up for Yourself . . . . If you lie now, you have no one you can blame for your actions. . . . Your actions have consequences, and if you lie about me again, I will have no choice but to take action against you. I love you, but I know that if I do not hold you responsible for your actions, no one will."
Shortly after the order was extended, the defendant posted "Closing Doors" where he wrote that he dreamed that the victim died and that "I hope it isn't a vision of things to come." On August 15, 2014, the same day as the harassment prevention order extension hearing, the defendant posted "One Last Chance." Given the content of the blog posts and the context in which they were made, there was sufficient evidence for a jury to find that the blog posts contained intentional threats that would place a reasonable person in imminent fear of death or bodily harm. See Cullen, 79 Mass.App.Ct. at 621 (Commonwealth presented "sufficient evidence of a targeted threat" where defendant mailed twenty-five letters containing victim's personal information to victim's workplace; letters repeatedly mentioned Latin King gang and stated "LOOK OVER YOUR SHOULDERS 4 LIFE").
The victim testified that on this date "the harassment order became permanent." "One Last Chance" was the defendant's last blog post.
2. Jury instructions.
a. First Amendment to the United States Constitution.
"Trial judges have 'considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration.'" Commonwealth v. Alden, 93 Mass.App.Ct. 438, 444 (2018), quoting Commonwealth v. Kelly, 470 Mass. 682, 688 (2015). "As there was no objection at trial, 'we review for a substantial risk of a miscarriage of justice.'" Commonwealth v. Diaz, 100 Mass.App.Ct. 588, 599 (2022), quoting Commonwealth v. Bolling, 462 Mass. 440, 452 (2012). At trial, the judge instructed the jury on the elements of stalking, criminal harassment, and violation of the harassment prevention order that the Commonwealth was required to prove beyond a reasonable doubt. To satisfy the first element of criminal harassment, the judge instructed the jury: "the Commonwealth must prove a pattern of conduct which includes a minimum of three incidents of harassment . . . phrased in the alternative [as] a knowing pattern of conduct, or speech, or series of events. Speech, even offensive speech, enjoys broad protection under the First Amendment, subject to narrow exceptions. So, to the extent that the Commonwealth solely relies on pure speech to satisfy this element, that speech must consist of threats or so-called fighting words that directly conveyed to the alleged victim[']s face [sic]. However, this limitation does not apply to speech that violates a court order, such as a no contact order, even if it would otherwise be protected. It also does not apply, if the conduct in conveying the speech, is itself harassment." Because the jury convicted the defendant of stalking, the jury necessarily found that the defendant threatened the victim with the intent of placing her in imminent fear of death or bodily injury. See Commonwealth v. Chonga, 94 Mass.App.Ct. 385, 386-387 (2018) (for stalking conviction, "the evidence was clearly sufficient to support the jury's findings on the elements of threat and intent"). Accordingly, the jury necessarily must have found that the defendant's blog posts constituted a "true threat." See Walters, 472 Mass. At 691 ("Comparing the definition of 'true threat' to the threat component of the stalking statute, we conclude that any verbal or written communication that qualifies as a threat as defined in the statute is also a 'true threat,' and therefore is not entitled to protection under the First Amendment"). Any error in defining the scope of true threats in the instruction on criminal harassment could not have affected the jury's decision. See O'Brien v. Borowski, 461 Mass. 415, 420 n.5, 425 (2012) ("discern[ing] an intent to confine the meaning of harassment to either fighting words or 'true threats'").
Moreover, the "knowing pattern of conduct or series of acts" in the criminal harassment indictment was not based solely on speech because the indictment included the defendant's "unwanted touching of and contact with" the victim and the defendant "mailing . . . a package containing writings directed to/and or about" the victim to her home. Cf. Bigelow, 475 Mass. at 571 ("'conducts or series of acts,' G. L. c. 265, § 43A [a], that the Commonwealth claimed qualified as harassment consisted solely or at least principally of speech -- i.e., the contents of the letters"). Furthermore, as explained supra, many of the defendant's blog entries focusing on the victim's death and the defendant's need to take action against her have no reasonable interpretation but as true threats. Accordingly, any error in the instruction did not cause a substantial risk of a miscarriage of justice. See Commonwealth v. Buttimer, 482 Mass. 754, 772-773 (2019) (error in judge's instruction "did not rise to the level of a substantial risk of a miscarriage of justice").
b. Intent to communicate the threat.
Here, where the Commonwealth introduced abundant evidence that the defendant intended to communicate the threat contained in his blog posts to the victim, the judge's failure to instruct the jury that the Commonwealth had to prove that he intended those posts to reach the victim did not create a substantial risk of a miscarriage of justice. See Walters, 472 Mass. at 693 ("although communication of a threat to its intended victim is not expressly required under [G. L. c. 265,] § 43 [a] [2], we agree with the Appeals Court that evidence of the defendant's intent to communicate the threat through direct or indirect means is necessary"). At trial, the Commonwealth introduced blog posts where the defendant expressed his intent that the victim read his posts. In November 2011, the defendant posted, "My beloved Ellie . . . . I am writing this post and hoping that the message here eventually makes its way to you" and, "I hope Ellie is reading this blog." In January 2012, the defendant posted, "Ellie . . . . I hope you are reading this" and, "Ellie . . . . If, by chance, you are still reading this blog . . . please read all the posts and comments I have written for you." In August 2013, the defendant posted, "If [the victim] . . . is reading this . . . ." In August 2014, the defendant posted, "If, by any chance, a part of my beloved [victim] does still exist and is still reading this blog." Although the blog posts were publicly accessible, they were specifically directed at the victim. See Commonwealth v. Johnson, 470 Mass. 300, 312-313 (2014) (where public Craigslist postings were directed at "the victims and the victims alone," "defendants cannot launder this harassment . . . through the Internet to escape liability").
On the stalking charge, the judge instructed the jury, "you'll need to consider what his [the defendant's] intention was in making it [the threat]." In contrast, for the violation of the harassment prevention order charge the judge instructed the jury that, if "the defendant is alleged to have violated the harassment prevention order by means of the actions of a third person or persons, the Commonwealth must prove that the defendant intended that a third person do the act that resulted in the Violation of the Order."
The victim testified that "you could go to dankim.com to find the defendant's blog or you could . . . google my name and . . . [i]t was on the first page of search results."
Furthermore, the defendant mailed a package containing the blog posts to the victim's home. Although the package was addressed to the victim's younger sister, any reasonable jury would conclude that the defendant intended to communicate the contents of the package -- the blog posts -- to the victim. See Commonwealth v. Hughes, 59 Mass.App.Ct. 280, 283 (2003) (evidence sufficient for jury to find that, in making statement to his brother, defendant intended it "to be passed on" to victim). Accordingly, there was no substantial risk of a miscarriage of justice.
3. Vindictive prosecution.
"A defendant has a heavy burden to demonstrate that there was prosecutorial vindictiveness: there must be a high likelihood of actual vindictiveness, and application of the doctrine must not 'unduly undermine normal prosecutorial discretion' to bring charges in multiple prosecutions." Commonwealth v. Rodriguez, 476 Mass. 367, 374 (2017), quoting Commonwealth v. Johnson, 406 Mass. 533, 537 (1990). We assume, without deciding, that a claim of vindictive prosecution may be brought for the first time on appeal.
Here, the Commonwealth acted within its discretion in charging indecent assault and battery and additional violations of the harassment prevention order in the indictments that were not included in the District Court complaint. See Rodriguez, 476 Mass. at 374, quoting Johnson, 406 Mass. at 538-539 (prosecutor has discretion "after obtaining a first set of indictments, to initiate additional prosecutions for separate and distinct crimes"). Although the defendant's conduct during the summer of 2011, which included the sexual assault, prompted the victim to seek a harassment prevention order, nothing in the record indicates that the victim reported the sexual assault to the police at that time. In any event, the Commonwealth was not restricted to the charges that the police sought in the application for a criminal complaint in deciding how to craft the indictments. Cf. Commonwealth v. Barbosa, 99 Mass.App.Ct. 132, 135 (2021), quoting Commonwealth v. Wilbur W., 479 Mass. 379, 409 (2018) ("A district attorney is vested with wide discretion in determining whether to prosecute an individual"). Similarly, the Commonwealth was entitled to amend its original complaint with additional harassment prevention order violations based on the defendant's continued blogging after the 2013 complaint was filed. See Rodriguez, 467 Mass. at 374. Accordingly, the Commonwealth's charging decisions were within its prosecutorial discretion.
Judgments affirmed.
Neyman, Ditkoff &Hershfang, JJ.
The panelists are listed in order of seniority.