COMMONWEALTH v. GRILLO (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2015, the defendant's ex-boyfriend (victim) obtained a harassment prevention order against her. The order generally prohibited the defendant from contacting the victim.² Following a jury-waived trial, a District Court judge found the defendant guilty of violating the order by calling the victim from her parents’ telephone. On appeal, the defendant challenges the sufficiency of the evidence. We affirm.

We begin by reviewing the basis on which the judge found the defendant guilty. The Commonwealth presented evidence that the defendant violated the order in multiple respects. For example, the victim testified that on the weekend of April 7, 2017, he received a series of calls from a telephone number that he recognized as the landline of the defendant's parents. The victim also testified about threatening text messages that he believed came from the defendant, including one that allegedly contained a threat about burning down the home of the victim's ex-wife. After the Commonwealth finished presenting its evidence, the judge explained that the Commonwealth had not proven its case beyond a reasonable doubt with respect to most of the alleged violations. For example, she found the evidence regarding the alleged threat of arson insufficient because the text message was never shown to the police, nor entered in evidence.

The judge nevertheless found beyond a reasonable doubt that the defendant had violated the order with respect to one call placed to the victim from the landline of the defendant's parents. That call resulted in a voicemail that was entered in evidence, which provided corroboration that the victim had received the call. We disagree with the defendant that there was insufficient evidence upon which the judge could have found that the defendant placed the call. There was testimony from the defendant's father that the defendant was staying at his home during the relevant time period, and that he, his wife, and granddaughter all were away at the time. Thus, there was evidence that the defendant was the only person who could have placed the call from her parent's landline.

In arguing that no rational fact finder could have found her guilty beyond a reasonable doubt, the defendant highlights one aspect of the specific voicemail in question. The only voice that was identified on that voicemail was not that of the defendant, but instead that of the victim's ex-wife. As best can be gleaned from the record before us,³ the ex-wife can be heard saying “hello, hello, hello,” followed by -- according to the judge's description -- “it is Mr. Grillo's phone” or “it is Mrs. Grillo,” and “it is from Lauren.”⁴ The judge stated that she was “adequately satisfie[d] ․ that that [tele]phone call came from the defendant linked into [the victim's] [tele]phone, the call to his ex[-]wife.”

As the defendant points out, there was no direct evidence of how the defendant may have “linked” a call she placed to the victim's ex-wife to a call she placed to the defendant's telephone. Thus, for example, a fact finder could not confidently have concluded whether the defendant first recorded a call she had placed to the ex-wife and then played that recording back during her call to the victim, or instead placed a three-way call to the victim and the victim's ex-wife. However, the Commonwealth had no duty to prove how the call was linked. For present purposes the question is simply whether the Commonwealth's proof that the defendant was the one who placed the call to the defendant's telephone was so undercut by the presence of the ex-wife's voice on the voicemail that no rational fact finder could have found that the defendant made the call beyond a reasonable doubt. At least where, as here, there was no reason to think that the victim's ex-wife herself placed the call to the victim's phone from the defendant's parents’ house, we conclude that the Commonwealth's evidence was sufficient that the defendant placed the call.

The defendant additionally argues that the evidence was legally insufficient because the defendant accidentally may have placed the call to the victim. Putting aside that the defendant never raised such a defense in the trial court, we disagree with the defendant's claim that the possibility that the defendant called the victim by accident was strong enough to prevent any rational fact finder from finding otherwise beyond a reasonable doubt. In that regard, we note that the circumstances of the telephone call indicate that the call was not placed through the phenomenon commonly known as a “butt dial.” Specifically, the call came from a landline, not a cell phone, and there was testimony from the defendant's father that the victim's telephone number was not stored on his telephone system. In addition, the fact that the call to the victim was made in a manner that passed along a call that the defendant had made to the victim's ex-wife provides strong evidence that the defendant did not call the victim by accident. In sum, there was evidence upon which the judge could find beyond a reasonable doubt not only that the defendant called the victim in violation of the order, but that she intended to do so.

Judgment affirmed.

FOOTNOTES

2.   In 2016, the order was modified so as to allow the parties to exchange voicemails to arrange for drop-offs and pick-ups of the child they share. The defendant makes no claim that the telephone call that underlies her conviction fits within this exception.

3.   The defendant did not move to have the trial exhibits transmitted to us, and the recording of the voicemail therefore is not before us.

4.   The defendant appears to suggest that the recorded reference to who placed the call may have been made by a second female, and she accurately points out that no witness identified anyone's voice on the voicemail other than the ex-wife's. In finding the evidence sufficient, we do not rely on evidence that any such second voice was that of the defendant.