COMMONWEALTH v. HOLMES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury-waived trial in the District Court, the defendant was convicted of three counts of threatening to commit a crime, G. L. c. 275, § 2. On appeal, the defendant challenges the sufficiency of the evidence against him. We affirm.

Background. We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). In July 2014, the defendant attended a hearing at the Probate and Family Court in Springfield. He was present to support his wife, D.C., who was seeking to modify the custody and visitation order regarding her son, whom we shall call Junior.² Junior's father (whom we shall call Senior), who had custody of Junior, also attended the hearing. Also present were Senior's mother and D.C.'s mother.

D.C. did not prevail on her motion to modify the custody and visitation order. After the hearing, Senior, his mother, and D.C.'s mother left the court room together, passing the defendant as they walked out. The defendant approached D.C.'s mother and called her a “fucking bitch,” and said, “You're never going to see your grandchildren again.” The defendant continued, “[Y]ou're dead. I'm going to fucking kill you. You're all dead.” The defendant pointed to, and made eye contact with, Senior, Senior's mother, and D.C.'s mother when he said, “[Y]ou're all dead.”

The defendant testified at trial. He admitted that his relationship with the victims was not good and that he was angry after the custody hearing concluded. He also admitted that he told D.C.'s mother that she would never see her grandchildren again. The defendant denied, however, that he threatened the victims.

Discussion. To prove a threat to commit a crime, the Commonwealth must establish “an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat” (quotation and citation omitted). Commonwealth v. Milo M., 433 Mass. 149, 151 (2001). The defendant argues that the evidence was not sufficient to prove a justifiable apprehension that the defendant had the intent and ability to carry out his threats. We disagree.

“Whether the threat was made in attending ‘circumstances that would justify apprehension’ is measured by means of an objective standard.” Commonwealth v. Kerns, 449 Mass. 641, 653 n.18 (2007), quoting Milo M., 433 Mass. at 151. The threat need not cause actual fear or apprehension as long as its content and the surrounding circumstances, viewed objectively, would reasonably inspire fear that the threat might be carried out. See Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 436 (2004). In determining whether the defendant's statements caused the victims justifiable apprehension, the statements “must be interpreted in the context of the actions and demeanor which accompanied them.” Commonwealth v. Eiliffe, 47 Mass. App. Ct. 580, 582 (1999).

Here, there was evidence that the defendant, in an emotionally charged confrontation immediately after his wife had lost her request to modify a child custody order, told the victims that they were “dead” while pointing and making eye contact with each of them.³ The judge also heard evidence that there was a history of hostility between the defendant and the victims. Considering this evidence in the light most favorable to the prosecution, see Latimore, 378 Mass. at 677, the judge could rationally conclude that the defendant's unambiguous statements that he would kill the victims created a reasonable apprehension that he would, in fact, try to kill the victims. See Commonwealth v. Sholley, 432 Mass. 721, 725 (2000).

We are not persuaded by the defendant's argument that “[t]he victim's continued contact with [the defendant] belies any reasonable belief that [the defendant] had the ability and intention to carry out his threats.” The question for the fact finder was what the victims reasonably perceived at the time the threat was made. While the victims' subsequent conduct may have been relevant to that determination, it did not compel allowance of the motion for a required finding of not guilty in this case. The judge could reasonably have concluded from evidence of the defendant's direct threats to the victims' lives that the victims had a justifiable apprehension that the defendant had the intent and the ability to carry out his threats.

Finally, we discern no merit in the defendant's argument that his testimony caused the Commonwealth's case to deteriorate. Deterioration occurs when the Commonwealth's evidence is later shown to be “incredible or conclusively incorrect.” Commonwealth v. Ross, 92 Mass. App. Ct. 377, 381 (2017), quoting Kater v. Commonwealth, 421 Mass. 17, 20 (1995). “Deterioration does not occur merely because the defendant contradicted the Commonwealth's evidence.” Ross, supra. Here, the defendant admitted that his relationship with the victims was not good and that he was angry when the hearing in the Probate and Family Court concluded, but he denied threatening to kill the victims. The judge was in the best position to weigh this evidence and we see no reason to disturb his judgment.

Judgments affirmed.

FOOTNOTES

2.   The Probate and Family Court pleadings are not part of the record on appeal.

3.   In light of the evidence that the defendant pointed and made eye contact with each victim, we see no merit in the defendant's argument that the evidence did not support a conclusion that D.C.'s mother was threatened.