COMMONWEALTH v. BRIAN BARNICLE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in the Superior Court, a jury convicted the defendants, Brian J. Barnicle and Crystale Barnicle,² of multiple offenses arising from the abuse of their two children (son and daughter, or collectively, children). Both defendants appeal from their convictions. We affirm.

Background. “We recite the evidence in the light most favorable to the Commonwealth, reserving certain details for later discussion.” Commonwealth v. Tavares, 484 Mass. 650, 651 (2020). At trial, the son, then sixteen years old, and the daughter, then seventeen years old, testified about how Brian physically abused them and how Crystale permitted this abuse. The Commonwealth also offered testimony describing how, after the Department of Children and Families (DCF) and the police learned of this abuse, the defendants discouraged the children and other witnesses from sharing information with DCF and the police.

Brian abused the children throughout their childhood, often in Crystale's presence. He would strike the son's bottom with a leather belt, causing bruises and scratch marks, and would force the children to squat against the wall. If they fell, Brian would scream at them to get back against the wall. Although Crystale would tell Brian to stop, she never called the police, took the children out of the house, or brought them to a doctor. In January 2016, Brian hit the son in the head with a cane. Crystale told Brian that she was “going to call somebody,” but she never did.

In May 2016, Brian struck the son with a cane on the shoulder so hard that the cane shattered. Between 2016 and 2021, Brian would hit the son at least once or twice a month.

In November 2018, Brian learned that the daughter downloaded a dating application to her phone. He hit her stomach and legs so hard that she fell to the ground. He then grabbed her hair, pulled her up, grabbed her by the neck, and held her against the wall for fifteen seconds. Her feet were not touching the floor, and she could not breathe. Crystale told Brian to stop but failed to either get assistance or report Brian's abuse.

The physical abuse continued unabated. In May 2019, Brian shoved the son to the ground, led him to the bedroom, and struck him multiple times with a belt for forty-five minutes. The son testified that this was “the worst punishment [he] got in [his] entire life.” His bottom was “completely black,” and he had cuts from the belt. Crystale photographed his injuries but did not report them or seek out medical care. In January 2020, Brian hit and screamed at the son for thirty to forty minutes, hitting him twenty or thirty times. This caused the son to fall and suffer from head pain that lasted a week. In April 2020, Brian struck the daughter on the head, causing her to fall to the ground, where Brian continued to strike her at least ten more times.

This abuse finally came to an end in 2021. That January, Brian hit the son in the face and punched him in the thighs for one or two hours. Several days later, a teacher asked what happened to his eye. After first saying he was hit by a football, because his parents told him to lie if anyone asked, the son told a teacher about Brian's abuse. DCF then removed the children from the defendants’ custody. As the daughter was leaving the defendants’ home, Crystale told her “[t]o not say anything because [the son] already said enough.” Shortly afterwards, the defendants called the daughter's cell phone and spoke with the children. Brian asked what they told the authorities and instructed them not to say anything more. Brian's tone of voice made the son think that he was “going to be in a lot more trouble” when he returned home.

As part of the police investigation, a detective visited the house of the defendants’ neighbor. While the detective and the neighbor conversed inside, Brian paced outside the windows and stood by the door. He then entered and introduced himself to the detective. After the detective left, Brian offered to take the neighbor's daughter for ice cream. This was the first time he ever made such an offer. Brian then asked the neighbor what the detective was doing at her house, said that the detective “should have met [the neighbor] somewhere else,” and suggested that the neighbor speak with Brian's lawyer or obtain her own lawyer. Later that night, the detective returned and saw Brian outside, “facing the [neighbor's] house with his arms folded across his chest and just staring at the [neighbor's] house.”

The jury found Brian guilty of thirteen criminal offenses: three counts of assault and battery with a dangerous weapon, based on Brian using the cane on the son in January 2016, using the cane on the son in May 2016, and using the belt on the son in May 2019; three counts of assault and battery, based on his abuse of the son in January 2020 and January 2021 and his abuse of the daughter in April 2020; two counts of reckless endangerment of a child, based on Brian's conduct toward the children between 2016 and 2021; one count of strangulation of the daughter, based on the incident in November 2018; and four counts of intimidation of a witness, based on his telephone call to the children and his conduct toward the neighbor and her daughter.

As for Crystale, the jury found her guilty of three counts of permitting injury to a child, two counts of reckless endangerment of a child, and one count of intimidation of a witness. The convictions for permitting injury to a child were based on Crystale's conduct toward the son in May 2019 and January 2020 and toward the daughter in November 2018. The convictions for reckless endangerment were based on Crystale's conduct toward each child between 2016 and 2021, and the witness intimidation conviction was based on Crystale telling the daughter to not say anything as she left Crystale's custody.

Discussion. 1. Brian's appeal. a. Prior bad acts. Brian argues that the judge abused his discretion when admitting evidence of prior bad acts. Before trial, the Commonwealth moved to admit the evidence of Brian striking the children with a belt and forcing them to squat against the wall. The Commonwealth argued that this evidence was relevant to show intent by rebutting Brian's claim of permissible parental discipline. The judge allowed the motion but barred the Commonwealth from mentioning the prior bad acts in its opening statement. In addition, the judge thrice instructed the jury that they could only use this evidence to determine Brian's intent for the conduct charged. The judge did not err.

“Evidence of prior bad acts may not be used to show bad character or propensity to commit the crime charged but may be admitted to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive” (quotation and citation omitted). Commonwealth v. Newcomb, 80 Mass. App. Ct. 519, 526 (2011). Here, the prior bad acts were relevant as they demonstrated Brian's intent by revealing “a pattern of conduct, the existence of the same passion or emotion at the time in issue, and a full picture of the entire relationship with the victim.” Id. The judge acted within his discretion by concluding that any unfair prejudice did not outweigh the probative value and properly mitigated any potential for unfair prejudice by giving a meaningful limiting instruction and barring the Commonwealth from referring to this evidence in its opening statement. See Commonwealth v. Peno, 485 Mass. 378, 396 (2020) (limiting instruction was capable of mitigating risk of prejudice). b. Sufficiency of evidence of witness intimidation. Brian next argues that the evidence supporting his convictions of witness intimidation was insufficient. 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” (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). To convict on a charge of witness intimidation, the Commonwealth must prove beyond a reasonable doubt that “(1) the target of the alleged intimidation was a witness in a stage of a criminal proceeding, (2) the defendant wilfully endeavored or tried to influence the target, (3) the defendant did so by means of intimidation, force, or threats of force, and (4) the defendant did so with the purpose of influencing the complainant as a witness” (citation omitted). Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 612-613 (2007).

The evidence was sufficient to show that Brian committed the offense of witness intimidation when he called the two children on the phone. This phone call occurred shortly after authorities removed the children from Brian's custody, marking an end to Brian's long-term physical abuse of them. The son testified that Brian's tone of voice suggested that the son “was going to be in a lot [of] trouble.” In this context, Brian telling the children not to “tell any more” provides sufficient evidence that Brian attempted to influence the children through intimidation with the purpose of influencing them in their capacity as witnesses. See Pagels, 69 Mass. App. Ct. at 613 (“jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances” [citation omitted]).

The evidence was also sufficient to find Brian guilty of witness intimidation based on his interactions with the neighbor and her daughter, who were potential witnesses because they had seen the children's injuries. Brian walked around the neighbor's house, looked through the windows, and entered without notice. Brian later offered to take the neighbor's daughter to get ice cream, which was a type of offer he never made before. He then asked the neighbor's daughter why the detective had been there, and told the neighbor that she should either speak to his lawyer or get her own. And later that night, Brian stood or sat facing the neighbor's home, arms crossed, between two tiki torches and staring straight ahead. This behavior was sufficient to show that Brian intended to intimidate the neighbor and her daughter from speaking with the detective.

c. Prosecutor's closing. Brian argues that the prosecutor mischaracterized the evidence in closing argument when she described Brian's intent as he approached the neighbor's house. Brian did not object, and therefore our review is limited to determining whether there was an error and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Cuffee, 492 Mass. 25, 32 (2023). The prosecutor is “entitled to marshal the evidence and suggest inferences that the jury may draw from it” (citation omitted). Commonwealth v. Roy, 464 Mass. 818, 829 (2013). That is what the prosecutor did here.

Read in its entirety, the prosecutor's closing did not mischaracterize the witness's testimony but rather summarized the evidence and supplied fair inferences designed to rebut Brian's closing. For example, given that Brian was pacing outside the neighbor's house, looking through the windows, and then entered the house abruptly without being invited; it was fair for the prosecutor to supply the inference in her closing argument that Brian knew a detective was inside and entered to intimidate the witnesses. See Roy, 464 Mass. at 829 (inferences suggested by prosecutor during closing argument “need only be reasonable and possible”). Accordingly, there was no error. See id. at 834 (prosecutor allowed to respond to defendant's arguments).

d. Specific unanimity instruction. Brian next challenges his two convictions for reckless endangerment and argues that the judge should have given a specific unanimity instruction. Brian did not ask for one nor did he object when one was not given, so we again review for a substantial risk of a miscarriage of justice. See Cuffee, 492 Mass. at 32. A specific unanimity instruction is proper when the Commonwealth presents evidence of “separate, discrete incidents, any one of which would suffice by itself to make out the crime charged” (citation omitted). Commonwealth v. Casbohm, 94 Mass. App. Ct. 613, 620 (2018). Here, no substantial risk of a miscarriage of justice occurred because the evidence relevant to the reckless endangerment charges consisted not of isolated incidents but rather of ongoing acts of abuse. See id. (“where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required” [citation omitted]).

e. Adequate notice of offense. Lastly, Brian argues that the conviction for assault and battery with a dangerous weapon for beating the son with the cane was improper because the Commonwealth denied Brian the opportunity to prepare for his defense. This is so, according to Brian, because the indictment charges him with committing this offense on January 1, 2016,³ but the son testified on cross-examination that this beating occurred “[b]efore 2016.” Brian did not object during trial, so we review for a substantial risk of a miscarriage of justice. See Cuffee, 492 Mass. at 32.

During direct examination the son testified at least twice that this beating occurred in January 2016. Although the son stated otherwise on cross-examination, a full reading of the testimony shows that the son was confused by the questions posed to him. In any event, any inconsistency did not create a substantial risk of a miscarriage of justice. Instead, the contradictory answers factored into the son's credibility, which was an issue for the jury to resolve. See Commonwealth v. Lewis, 91 Mass. App. Ct. 651, 663 (2017).

2. Crystale's appeal. a. Counterman instruction. On appeal, Crystale argues for the first time that the jury instruction for witness intimidation ran afoul of Counterman v. Colorado, 600 U.S. 66 (2023), which issued more than six months before the trial in these appeals. In Counterman, 600 U.S. at 72-73, the United States Supreme Court held that where a person is criminally charged for making “true threats,” the prosecution must prove that the defendant acted with at least reckless disregard for the threatening nature of the speech to avoid impermissibly chilling the speaker's First Amendment rights. See Commonwealth v. Cruz, 495 Mass. 110, 113-114 (2024).

Crystale did not raise this issue at trial, so we limit our review to whether a substantial risk of a miscarriage of justice occurred.⁴ See Commonwealth v. Ushon U., 497 Mass. 464, 468 (2026). “[T]o determine whether a substantial risk of a miscarriage of justice is created by the omission of a required element from the jury instructions, the question is ․ whether the presence of the omitted element was an ineluctable, or inescapable, inference from the evidence presented at trial.” Commonwealth v. Desiderio, 491 Mass. 809, 820 (2023).

On this record, Crystale cannot demonstrate that this omitted element created a substantial risk of a miscarriage of justice. Here, Crystale's statement to the daughter to “not say anything” because the son “had already said enough,” is sufficient to establish Crystale's conscious disregard of the substantial risk that the daughter would view this statement as a threat. Furthermore, this statement followed years of both children suffering serious physical abuse that Crystale permitted. Considered in this context, Crystale's statement created an inescapable inference that such conscious disregard occurred. See Commonwealth v. Silvelo, 486 Mass. 13, 18-20 (2020) (common sense evaluation of evidence demonstrates no prejudice from instruction that omitted element). Cf. Desiderio, 491 Mass. at 820-822 (substantial risk present when neither direct nor circumstantial evidence showed element of offense).

b. Sufficiency of witness intimidation. Crystale next argues that the evidence was insufficient to establish witness intimidation because the evidence neither shows that her statement to the daughter was threatening nor shows that Crystale made the statement intending to influence the criminal investigation. We review the evidence in the light most favorable to the Commonwealth. See Latimore, 378 Mass. at 676-677. Given the history of physical abuse in this case, most of which Crystale saw, we are confident that the evidence was sufficient for the jury to find beyond a reasonable doubt that Crystale's statement amounted to a threat. See Commonwealth v. Chou, 433 Mass. 229, 234 (2001) (“language properly may be understood and treated as a threat even in the absence of an explicit statement of an intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response”).

The evidence was also sufficient to show that Crystale made the statement with the intent to influence a criminal investigation. The jury was able to infer this intent because of, once again, the context. That Crystale permitted the children to suffer from serious, physical abuse over many years supports the inference that Crystale discouraged the daughter from speaking because Crystale wanted to avoid the consequences of a potential criminal investigation. See Chou, 433 Mass. at 234 (intent to threaten inferable from context).

Crystale's argument that the evidence is insufficient because it did not establish that she was aware of a criminal investigation at the time she made the statement to the daughter is unavailing as is her additional argument that there was an equal chance that she made the statement intending to impede the DCF investigation and not a criminal investigation. Even without conclusive evidence that Crystale was aware of an ongoing criminal investigation, she was aware of the physical abuse and that DCF was removing the children from her custody. In this situation, one can infer that Crystale understood that a criminal investigation was likely forthcoming and that she intended her statement to impede such an investigation. And although Crystale may have been immediately focused on the DCF investigation, such focus does not mean that her actions were not also designed to impede the criminal investigation. After all, the revelation of physical abuse in a DCF investigation can easily become the basis of a criminal investigation. See Commonwealth v. King, 69 Mass. App. Ct. 113, 121 (2007) (evidence sufficient when “it was likely that the victim would furnish to an official investigating authority information pertaining to the crime and that the defendant intended to discourage such communication”).

c. Specific unanimity instruction. Crystale's remaining claim, about which she made no objection at trial, is that her reckless endangerment convictions should be reversed because the judge did not give the jury a specific unanimity instruction. This argument fails for the same reasons that Brian's specific unanimity argument fails. Her conduct that formed the basis of these charges stemmed not from isolated incidents but rather ongoing acts. See Casbohm, 94 Mass. App. Ct. at 621 (“In the absence of some distinguishing differences between the successive events, there is no reason to fear that the jury will pick and choose among the alleged incidents and convict the defendant while disagreeing as to which of them were committed”).

Judgments affirmed.

FOOTNOTES

2.   Because the parties share a surname, we use their first names to avoid confusion.

3.   To be precise, the indictment states that this assault occurred “on or about” January 1, 2016.

4.   Crystale argues that her failure to object was excusable because, although the United States Supreme Court decided Counterman six months before trial, its effect on Massachusetts case law remained unclear. The Supreme Judicial Court rejected this argument in Commonwealth v. Ushon U., 497 Mass. 464, 468 n.5 (2026).