Opinion
14-P-1337
01-22-2016
COMMONWEALTH v. STEVEN VELASQUEZ.
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
The defendant appeals from his conviction, after a jury trial, of intimidation of a witness "on diverse dates from January 2012 to January 2013." He contends that the evidence was insufficient to support his conviction, that errors in the jury instructions require reversal, and that his motion to dismiss on speedy trial grounds was erroneously denied. Because we conclude that the evidence falling within the time period alleged in the indictment was insufficient to establish guilt beyond a reasonable doubt, we reverse.
The defendant was acquitted on two counts of assault and battery of a child, G. L. c. 265, § 13J(b), and one count of assault and battery, G. L. c. 265, § 13A.
Given the basis for our disposition, we do not reach the defendant's other claims.
"In determining the validity of a claim challenging the sufficiency of the Commonwealth's evidence at trial, we review the evidence 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. Powell, 459 Mass. 572, 578-579 (2011), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). At issue is the sufficiency of evidence put forward by the Commonwealth to prove that the defendant intimidated a witness, his girl friend Stephanie Matos, "on diverse dates from January 2012 to January 2013." As charged to the jury, the Commonwealth was required to prove:
At the close of the Commonwealth's evidence, and again following the jury verdict, the defendant moved for a required finding of not guilty.
"First, the defendant made an effort to influence, impede, obstruct, delay or otherwise interfere with . . . Ms. Matos. Second, that he did so by means of intimidation, force or threats of force. Third, that Ms. Matos was a witness in any criminal proceeding or was a person furnishing information to a criminal investigator about a violation of a criminal statute in Massachusetts. And, finally, the defendant engaged in this conduct with the specific intent of influencing, impeding, obstructing, delaying or otherwise interfering with Ms. Matos as a witness or a potential witness."
The defendant claims correctly that the judge's instruction did not correspond to the version of the statute in effect at the time of the alleged crimes, G. L. c. 268, § 13B, as amended through St. 2010, c. 256, § 120. Because we are reversing the conviction on other grounds, we do not address the propriety of the charge, which in one respect heightened the government's burden of proof (the statute encompasses "a person who is furthering a civil or criminal proceeding," not only criminal proceedings as charged, G L. c. 268, § 13B[iv]), and lessened it in another (by including "influence," which is not used in the statute).
The evidence, viewed through the lens of the Latimore standard, would have permitted the jury to find the following facts beyond a reasonable doubt with respect to the period encompassed by the indictment. In January, 2012, the defendant held Matos in her apartment against her will for four days in violation of a restraining order. As part of that episode, he "smacked," punched, choked, and grabbed Matos by the hair, and he pushed and hit her sister. Furthermore, from January, 2012, to around November, 2012, the defendant threatened to kill Matos and to harm her brother. Based on this evidence, the jury could have found the first two elements of the offense, however, even in the light most favorable to the Commonwealth, there is no evidence to satisfy the third element -- that Matos was a witness in a criminal proceeding or a person furnishing information to a criminal investigator -- or the fourth element -- that the defendant acted with the specific intent to influence, impede, obstruct, delay, or otherwise interfere with a criminal proceeding or investigation. Although there was evidence from which the jury could find that the defendant intimidated Matos with the intention of obstructing a criminal investigation in January, 2013, those events were outside the period charged in the indictment.
The Commonwealth acknowledged at oral argument that the only proceedings at that time were civil in nature.
The Commonwealth presented evidence that in January, 2013, the defendant physically and verbally abused Matos and instructed her to inform falsely police officers, social workers, and medical staff that the couple's two year old daughter, rather than the defendant, was responsible for bite marks on the couple's infant son.
The Commonwealth contends that the conviction can rest on the events of January, 2013, even though they were outside the period charged in the indictment, on the ground that the variance between the time period alleged in the indictment and the proof at trial was immaterial. See G. L. c. 277, § 20 ("The time and place of the commission of the crime need not be alleged unless it is an essential element thereof"). We note at the outset that Commonwealth's argument would require us to accept an expansion of the indictment even though no motion to amend was made below, no amendment allowed, and the amendment would work to the defendant's prejudice. See Commonwealth v. Roby, 462 Mass. 398, 403 (2012), quoting from Commonwealth v. Miranda, 441 Mass. 783, 787 (2004) ("[A] judge has discretion to allow an amendment of an indictment if the amendment is one of form, not substance, and if the amendment will 'not result in prejudice'"). See also Mass.R.Crim.P. 4(d), 378 Mass. 894 (1979).
The instruction expanded the indictment to encompass events occurring "through" (not "to," as charged) January, 2013.
Even were we to overlook these concerns, where, as here, the Commonwealth charges a continuing offense, "the time period specified in the indictment is an integral part of the crime, and evidence of acts committed outside this period is generally not admissible to prove the crime." Commonwealth v. Megna, 59 Mass. App. Ct. 511, 513 (2003). See Commonwealth v. Patalano, 254 Mass. 69, 73 (1925) ("When the dates of a continuing offence are fixed in the indictment . . . the defendant cannot be convicted unless proven guilty of the crime within the period alleged, and no evidence is to be received unless it tends to prove that offence"). Because the Commonwealth prosecuted a "course of conduct," the time frame alleged in the indictment was an essential element of the crime and, accordingly, the variance between the indictment and the proof produced at trial was material under G. L. c. 277, § 35.
The Commonwealth charged and prosecuted the crime as a continuing offense, which it styled a continuing course of conduct. Consistent with the Commonwealth's theory of the case, the judge instructed the jury that the criminal conduct "occurred on diverse dates beginning in January, 2012, and ranging through 2013. . . . So, the conduct essentially was on-going." (Emphasis added.)
The double jeopardy significance of the rule is particularly evident here, where it appears that the defendant has previously been convicted for the January, 2012 offenses. "Since time is an essential element of a continuing offense, the defendant can never again be punished for engaging in the same criminal practice during the time period described in the indictment." Commonwealth v. Megna, supra at 514.
For the reasons set forth above, the judgment is reversed, and the verdict is set aside. Judgment shall enter for the defendant.
So ordered.
By the Court (Cypher, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 22, 2016.