Opinion
20-P-499
05-21-2021
COMMONWEALTH v. Jason M. SIMPSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant raises two issues in this appeal from his convictions of four counts of vandalism, G. L. c. 266, § 126A, and one count of violating an abuse prevention order, G. L. c. 209A, § 7. First, he argues that the judge abused his discretion in admitting prior bad act evidence, which he contends overwhelmed the trial. Second, the defendant argues that the judge erred in admitting a text message without sufficient authentication. We affirm.
The charges all stemmed from the "keying" of four cars during the night of January 23-24, 2018. The identity of the perpetrator was the sole issue at trial (indeed, the defendant stipulated to the remaining elements of the abuse prevention order violation, and did not dispute the elements of vandalism). There was no direct evidence of the perpetrator's identity, but circumstantial evidence pointed to the defendant.
Among other things, the defendant had been in a three and one-half to four-year relationship with D.L. -- the plaintiff on the restraining order at issue and the owner of one of the vandalized cars -- until November 2017, a couple of months before the vandalism. During that time, he had lived with D.L. at an address in Pittsfield, where two of the cars were parked on the night they were vandalized. The defendant knew that one of the cars belonged to D.L. The second vehicle was parked next to hers, and belonged to D.L.’s new boyfriend. Two additional vandalized vehicles were parked down the road in front of 113 Deming Street, where D.L.’s close friend J.C. lived together with her boyfriend. There was no love lost between J.C. and the defendant; among other things, the defendant had threatened to kill J.C.’s dog and burn down her house on an evening when he was unhappy that J.C. and D.L. were at a party. These two sets of cars were the only cars vandalized on the street on the night in question, which permitted the inference that the damage was not random.
Although these two cars were also seriously keyed, no words or messages were etched into them.
Further buttressing the inference that the cars were not vandalized at random and that the vandal had a sexual or romantic type of connection to D.L. were the messages written on D.L.’s and her boyfriend's vehicles. Those messages included "I suck dick" and "bitch" on D.L.’s car. Messages on D.L.’s boyfriend's truck included "It's good pussy, Check your bitch and Bitch Gay"; "Don't start faggot. Check your bitch"; and "I'm gay." Furthermore, the statement on D.L.’s car, "Bitch, return what isn't yours" could be seen to refer to an ongoing dispute between D.L. and the defendant over certain items that remained in D.L.’s apartment.
During their relationship, D.L. had given expensive gaming and television equipment and personal items to the defendant, which she refused to allow him to take from the apartment after their relationship ended. This was a point of contention between the two. Even while they were together, D.L. considered him "obsessive" about the items.
The vandalism was discovered after D.L. and her boyfriend awoke in the middle of the night and saw that there was no electricity in her apartment. No one else in the neighborhood had lost power, which caused D.L. to investigate the breaker panel in the basement. Access to the basement was from an exterior door in front of which was the kennel for D.L.’s dogs. The fence leading to the kennel had been knocked over, the basement door was open, and the main circuit breaker for D.L.’s apartment had been turned off. The breakers for the other three apartments had not been touched. Because the four panels were indistinguishable from each other, a person would need to be familiar with them to know which one controlled D.L.’s apartment. The defendant had such knowledge; on occasion, he had had to reset the breakers for D.L.’s apartment after overloading them while gaming.
D.L.’s testimony that she brought the dogs in before police arrived could suggest that the dogs had been outside when the perpetrator knocked over the kennel. However, absent any testimony directly on that point, or that the dogs had not barked or been upset by the intrusion, the evidence was too tenuous to support an inference that the intruder was known to the dogs. Contrast A.C. Doyle, The Adventure of Silver Blaze, The Memoirs of Sherlock Holmes, as compiled in the Complete Adventures of Sherlock Holmes, at 397 (1938).
Against this backdrop, the defendant argues that evidence of his prior bad acts should not have been admitted. The judge confined the evidence in time and subject matter (for example, by excluding mention of any legal consequences, such as convictions, from the prior bad acts). Moreover, the judge limited the evidence solely to establish motive, opportunity, the defendant's state of mind, his intent, and the nature of the relationship between the defendant and D.L. Although the defendant acknowledges that prior bad act evidence may be introduced for these purposes, he argues that the evidence "overwhelmed" the trial. See Commonwealth v. Dwyer, 448 Mass. 122, 129 (2006). As primary support for this proposition, he points to the number of pages of D.L.’s testimony on direct examination devoted to describing her relationship with the defendant, including the prior bad acts, and contrasts that with the number of pages devoted to other matters. By this measure, we agree that the testimony constituted a majority of D.L.’s testimony on direct. However, unlike in Dwyer, the remainder of the case did not. The prior bad acts were not the focus of D.L.’s cross-examination, which instead addressed the timeline of events, inconsistencies in D.L.’s testimony, and D.L.’s own motivations. Moreover, the prosecutor's closing properly focused on the evidence of the evening in question, and his reference to the prior bad acts was limited. Contrast id. Finally, another point of important distinction with Dwyer is that the prior misconduct was not of the sort charged. Specifically, none of the prior conduct involved vandalism. See Commonwealth v. Peno, 485 Mass. 378, 386 (2020) (in evaluating potential of unfair prejudice, court should consider "whether the challenged evidence was so similar to the charged offense as to increase the risk of propensity reasoning by the jury"). In fact, the judge denied the Commonwealth's motion to admit evidence of a prior incident of vandalism approximately a month before the events at issue here.
The judge's comprehensive and detailed limiting instruction was given contemporaneously with D.L.’s and J.C.’s testimony, and again during the final instruction.
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Several additional factors lead us to conclude that the judge did not abuse his discretion in admitting the testimony, and that it did not overwhelm the trial. To begin with, although evidence of the "toxic" and "abusive" relationship between the defendant and D.L. certainly bore on who might have had a motive to vandalize the cars, it was not the strongest or most meaningful evidence pointing to the defendant. Instead, as we have recounted above, other details about the crimes pointed strongly to him as the perpetrator. Furthermore, the judge's repeated, detailed, and clear instructions to the jury about the limited use to which the prior bad act evidence could be put protected against its misuse. See Commonwealth v. Mason, 485 Mass. 520, 532 (2020) (prejudicial effect of prior bad act evidence did not outweigh probative value in light of limiting instruction; no abuse of discretion in admitting it); Commonwealth v. Bryant, 482 Mass. 731, 737 (2019) (jury presumed to follow limiting instructions on prior bad act evidence).
The defendant also argues that the judge erred in allowing the victim to testify that, a day or two before the vandalism, she received a text message from a telephone number she did not recognize that stated: "You have some very sentimental stuff that isn't yours. This is me giving you a chance to do the right thing, even though I shouldn't. You're smart, you'll do the right thing. I'm not going to ask again." The defendant contends that there were insufficient confirming circumstances to permit a finding that he was the author of the message and, therefore, he contends that it was neither authenticated nor relevant. See Commonwealth v. Purdy, 459 Mass. 442, 450-451 (2011) ; Mass. G. Evid. § 901(b)(11) (2021).
We disagree. Whenever D.L. and the defendant would have an argument, the defendant would become "obsessive" about his personal items. Also, if D.L. tried to avoid communicating with the defendant after an argument, he would contact her through unknown numbers using a special texting application for that purpose. After their relationship ended in November 2017 and the defendant was no longer living at D.L.’s apartment, they disagreed over certain items that remained in the apartment. Ultimately, in January 2018, it was arranged that the defendant's mother would pick up his possessions. However, D.L. retained some expensive items on the theory that she was the person who had purchased them. This was a point of continuing contention between D.L. and the defendant when the text message was sent on January 21, 2018. In these circumstances, the timing, context, and content of the message were sufficient to permit the jury to conclude that the defendant was the author of the text message, even though it was sent from a telephone number D.L. did not recognize. In this sense, the message was authenticated. See Purdy, 459 Mass. at 450-451 ; Mass. G. Evid. § 901(b)(11).
For these reasons, we affirm.
Judgments affirmed.