COMMONWEALTH v. MIRANDA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted of violation of a harassment prevention order, G. L. c. 258E, § 9, the defendant argues on appeal that the jury heard insufficient evidence that he contacted the victim. We affirm.

In the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), circumstantial evidence proved that the defendant violated the “no contact” provision of the G. L. c. 258E order by sending a text message to the victim.² On January 5, 2017, while the order was in effect, the victim received a text message on her cell phone from a cell phone number she did not recognize; her own cell phone number was one she had used for years, including during her relationship with the defendant. The text message, written in Spanish, included the words, “Look at the beautiful family that you abandoned for a man younger than you,” and referred to the victim's new romantic partner with a slur. Attached to the text message was a photograph of the defendant, the victim, and their children that the victim recognized as one the defendant had taken when they were still romantically involved. Previously, before the issuance of the G. L. c. 258E order, the defendant had sent her the same photograph from a cell phone number that she did recognize as his.

That circumstantial evidence was sufficient to prove that the defendant sent the January 5, 2017, text message to the victim. The contents of the text message, stating that she supposedly had “abandoned” her “beautiful family” and disparaging her new romantic partner, were confirming circumstances tending to prove that the defendant had authored and sent it. See Commonwealth v. Purdy, 459 Mass. 442, 450 (2011). See also Commonwealth v. Alden, 93 Mass. App. Ct. 438, 445 (2018) (text messages threatening witness not to testify at upcoming trial of defendant); Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 759 (2016) (Facebook chat messages “replete with personal references, including pet names”); Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 368 (2014) (instant messages referring to details of prior conversations between defendant and recipient). Contrast Commonwealth v. McMann, 97 Mass. App. Ct. 558, 560 (2020) (Instagram message “Yoooo” devoid of content showing defendant sent it).

In addition, the attachment -- a photograph taken by the defendant that depicted him, the victim, and their children -- was another confirming circumstance tending to prove that he sent the text message. See Purdy, 459 Mass. at 451 (e-mail attached photograph of defendant). The victim testified that only she and the defendant had access to that photograph, and it was not posted on Facebook. See Commonwealth v. Meola, 95 Mass. App. Ct. 303, 313-314 (2019) (“There was no evidence before the judge that the attached video had been shared with anyone else or otherwise published. Simply because evidence is digital or electronic in nature, as opposed to documentary, does not necessarily mean that it is widely available to others or to anyone other than its maker”). Because only the victim and the defendant had access to the photograph, the jury could infer that he was the sender of the text message attaching it.

The mere fact that the victim did not recognize the telephone number from which the text message was sent did not negate the inference that the defendant sent it. Cf. Commonwealth v. Loach, 46 Mass. App. Ct. 313, 316 (1999) (circumstantial evidence proved identity of telephone caller, though recipient did not recognize voice). Contrast Commonwealth v. Williams, 456 Mass. 857, 869 (2010) (insufficient basis to conclude that defendant's brother sent MySpace messages urging witness not to testify); Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 355-356 (2013) (insufficient basis to conclude that defendant created disparaging messages on ex-husband's business's MySpace page).

The jury heard sufficient evidence to prove that the defendant violated the “no contact” provision of the G. L. c. 258E order by sending the text message to the victim.

Judgment affirmed.

FOOTNOTES

2.   The defendant does not explicitly argue that the text message should have been excluded from evidence because it was not authenticated. Nonetheless, we conclude that there were “confirming circumstances” sufficient to enable the jury to find by a preponderance of the evidence that the defendant sent the text message. Commonwealth v. Purdy, 459 Mass. 442, 449 (2011). See Mass. G. Evid. § 901(b)(11) (2020).