COMMONWEALTH v. COGGESHALL (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury-waived trial, the defendant was found guilty of intimidation of a witness, and not guilty of assault and battery. On appeal, the defendant claims there was insufficient evidence to support his conviction. We affirm.

“When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt’ (emphasis in original). Commonwealth v. Velasquez, 48 Mass. App. Ct. 147, 152 (1999), [quoting] Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 475 (2008). Rather, the relevant ‘question is 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’ (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), [quoting] Jackson v. Virginia, supra.” Commonwealth v. Bell, 83 Mass. App. Ct. 82, 83-84 (2013), quoting Commonwealth v. Romero, 80 Mass. App. Ct. 791, 794 (2011).

When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson, supra at 324 n.16; Latimore, supra at 677-678. In the circumstances of this case, to establish the defendant's guilt of intimidation of a witness, the Commonwealth was required to prove that the defendant (1) either directly or indirectly, willfully (2) threatened, attempted or caused physical or emotional injury, intimidated, or harassed another person (3) who was a witness or potential witness at any stage of a criminal investigation or criminal proceeding of any type. See Commonwealth v. Carvalho, 88 Mass. App. Ct. 840, 845 (2016); Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 612 n.5 (2007). See also G. L. c. 268, § 13B.²

Here, there is no dispute that the intimidation victim was also the victim in a pending rape trial in which the defendant's nephew stood accused of the rape. Instead, the defendant claims the judge should not have convicted him of intimidation of a witness based on his words and actions toward the victim. We disagree.

In the light most favorable to the Commonwealth, the evidence disclosed the following. The victim was a nineteen year old high school student, and the victim of a rape allegedly perpetrated by the defendant's nephew.³ While walking home, the victim noticed a pickup truck that was driving slowly and following her in the area of a local ice cream shop. The victim recognized the driver as the defendant, whom she knew. It was starting to get dark. Eventually the victim lost sight of the truck, and she continued to walk home. Shortly thereafter, the defendant appeared on her pathway. The victim tried to keep walking, but the defendant would not let her pass. Whatever direction she moved, the defendant did as well. He told her that his nephew did not rape her and that she should not have claimed that he had. The victim insisted it was true and the defendant continued to block her path. She unsuccessfully tried to push past him and then kicked him in the groin. The defendant responded by punching her in the eye, which caused her to fall to the ground. As she lay on the ground, the defendant waved his hands in the air, told her that her rape allegation was hurting his nephew, and again that she should say it was not true. The defendant left; the victim was scared and returned to her home.

From this evidence, the trier of fact could rationally conclude or infer that the defendant directly and willfully threatened the victim, who was a witness in a criminal proceeding, with the intent to intimidate or harass her. See Carvalho, 88 Mass. App. Ct. at 845. See also Commonwealth v. Casale, 381 Mass. 167, 173 (1980) (“inferences drawn by the [fact finder] need only be reasonable and possible and need not be necessary or inescapable”). This was sufficient evidence to support the defendant's conviction. See Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 531 (2010).

The defendant's counterarguments to this conclusion take a variety of forms, none of which has merit. First, the defendant claims that there was no evidence that the defendant knew the victim would be in the area of the ice cream store that day. While this observation is correct, it bears no fruit because G. L. c. 268, § 13B, contains no such requirement.

Second, and building on the claimed lacunae in the evidence above, the defendant argues that the only “reasonable inference” of his conduct was that his coincidental appearance on the path provided him with an opportunity to express his opinion regarding the veracity of the victim's rape complaint. “However, to indulge this argument, we would have to view the evidence in the light least favorable to the Commonwealth, which, of course, we cannot do.” Commonwealth v. Arias, 78 Mass. App. Ct. 429, 435 (2010). See Commonwealth v. James, 30 Mass. App. Ct. 490, 491 n.2 (1991).⁴

Third, the defendant claims there was insufficient evidence that the victim was intimidated because the time and the place of the incident were not inherently intimidating. While the prosecutor's closing argument made reference to the victim stating that it was getting dark and that she was isolated on the path, these scene-setting components to a closing argument do not morph into elements of the crime that must be proved. In any event, the evidence the defendant asks us to focus on, which arguably contradicts an assertion that it was getting dark, plays no role in the Latimore analysis. See Commonwealth v. Wilborne, 382 Mass. 241, 245 (1981) (conflicts in evidence resolved by fact finder, not reviewing court).⁵

Fourth, the defendant claims the evidence was insufficient because he neither used threatening language toward the victim nor did he explain to her how he intended to “impede, obstruct, delay, harm, punish, or otherwise interfere” with the pending rape case. However, as we have held, “An action does not need to be overtly threatening to fall within the meaning of ‘intimidation.’ ” Commonwealth v. Casiano, 70 Mass. App. Ct. 705, 708 (2007). With that said, the fact finder would have been fully justified in concluding that the defendant's actions -- standing over the victim he had just struck to the ground, and telling her she must recant her rape allegation -- were sufficient to constitute a threat contemplated by the statute.

Finally, the defendant claims that prior to being kicked by the victim, he used no physical violence or threats of violence to carry out his intimidation. As such, he claims the Commonwealth failed to prove that he willfully endeavored to influence or otherwise interfere with the witness by using intimidation, “force or threat of force.” However, as we just stated, the defendant did use physical violence during the course of the incident. Moreover, this language was not part of the version of § 13B that was in effect at the time of the defendant's trial. Specifically, the language cited by the defendant or similar language appeared in prior versions of the statute, see St. 1990, c. 369; St. 1996, c. 393, § 2, but that language does not appear in the version applicable to the defendant's trial.

Judgment affirmed.

FOOTNOTES

2.   The 2018 amendments to G. L. c. 268, § 13B, are not applicable in this case, where the operative events occurred in 2015. See St. 2018, c. 69, § 155, eff. April 13, 2018.

3.   The rape case was pending at the time of the intimidation incident at issue.

4.   Similarly, the defendant claims that because the incident occurred in public, the circumstances do not lend themselves to a conclusion that he intended to intimidate the victim. This too fails to view the evidence in the light most favorable to the Commonwealth. Also, our law does not insulate public acts of intimidation from punishment.

5.   The defendant also claims that there was conflicting evidence that the victim feared him. However, the Commonwealth was not obliged to prove “that the intimidation was successful in the sense that the target of the intimidating conduct was actually frightened and made reluctant to testify.” Rivera, 76 Mass. App. Ct. at 535.