Opinion
14-P-112
05-11-2015
COMMONWEALTH v. FRANK J. SOUZA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of multiple counts of assault and battery, violation of a harassment prevention order, criminal harassment, and two counts of accosting or annoying a person of the opposite sex (accosting). He appeals, claiming that there was insufficient evidence to convict on the charges of criminal harassment and accosting, and that the judge erred in admitting evidence of prior bad acts. We affirm.
The defendant was acquitted of indecent assault and battery.
1. Sufficiency of the evidence. In the light most favorable to the Commonwealth, the jury could have found the following facts. In the spring or summer of 2007, Carol Lamarre was driving near the Swansea Mall when she heard a car horn and some yelling. She saw the defendant yelling and gesturing; he eventually cut her off. Lamarre rolled down her car window and the defendant began screaming, "You are so beautiful, I love your hair, are you single?" The parties were unknown to one another. Later that year, while Lamarre was at a Burlington Coat Factory store, the defendant approached her and stated, "Oh, you're so beautiful, are you single?" Lamarre was frightened by the encounter and left the store. In the early winter of 2008, Lamarre once again encountered the defendant, this time in the parking lot of an indoor soccer arena in Fall River. The defendant approached Lamarre and once again said, "Oh, you're beautiful, I love your hair."
Lamarre next saw the defendant in Somerset at a bowling alley in 2011. The defendant was staring at her, which caused her to become fearful. On December 19, 2011, Lamarre was at the Dartmouth Mall, leaning over a jewelry display, when the defendant approached her from behind, pressed her against the glass of the display, and rubbed his body against her. He repeated that she was beautiful and that he knew she was single, causing her to become "blind with fear."
On February 6, 2012, Lamarre was once again at the bowling alley in Somerset. While seated on a bench, the defendant approached her from behind, put his arm around her and "scooted" her over. He repeated that she was single and beautiful. Scared, Lamarre told him if did not leave and if he touched her again, she would call the police. The defendant left. In March, 2012, Lamarre was in a parking lot at a tennis court in Swansea when the defendant approached her, grabbed her arm, and said, "You're single, and I know that you're single." He then shoved her against her car and asked for her telephone number. Lamarre was terrified. She instructed her grandson to write down the license plate number of the car the defendant drove and then reported it to the Swansea police. Lamarre sought and obtained a harassment prevention order pursuant to G. L. c. 258E (order). When the police officer served the order, the defendant acknowledged he was at the tennis court and claimed he was asking Lamarre on a date.
The final encounter occurred on December 20, 2012, when Lamarre was at the North Dartmouth Mall. The defendant grabbed her from behind in a "bear hug" and yelled in her ear that she was single. Lamarre screamed. When the police arrived, they found her to be very shaken, visibly upset, and very afraid. Lamarre later walked to her car with a police officer when the defendant approached them and apologized to her. The officer detained the defendant and later placed him under arrest. Lamarre testified that with each incident, the defendant's voice became more aggressive and agitated.
On appeal, the defendant contends that the judge erred in denying his motion for a required finding of not guilty on the counts charging criminal harassment and accosting. "When reviewing the denial of a motion for a required finding of not guilty, we inquire '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.'" Commonwealth v. Sepheus, 468 Mass. 160, 163 (2014), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The Commonwealth's evidence may be entirely circumstantial, and . . . the inferences a jury may draw from the evidence need only be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Mejia, 461 Mass. 384, 392 (2012) (citation omitted). We examine each charge in turn.
a. Accosting. General Laws c. 272, § 53, as amended through St. 2009, c. 27, § 98, states, in relevant part: "persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex . . . shall be punished." "Under the statute, 'offensive' and 'disorderly' are separate and distinct elements, and the Commonwealth must prove both beyond a reasonable doubt to satisfy its evidentiary burden." Commonwealth v. Sullivan, 469 Mass. 621, 625 (2014).
In Sullivan, the Supreme Judicial Court interpreted the "offensive" prong of the statute as requiring "proof of sexual conduct or language, either explicit or implicit. Explicit behavior is self-explanatory. By implicit sexual conduct or language, we mean that which a reasonable person would construe as having sexual connotations." Id. at 626. Here, over a period of five and one-half years, the defendant, a stranger to Lamarre, repeatedly approached her while aggressively professing her beauty and inquiring about her relationship status. In so doing, the defendant placed himself in close proximity to Lamarre's body, touched her arm, and pressed himself up against her. Reviewing this evidence in the light most favorable to the Commonwealth, the jurors reasonably could have found that the defendant's conduct was implicitly sexual.
While the defendant was acquitted of indecent assault and battery, we may consider the facts that formed the basis for that charge on the defendant's sufficiency claim as to the accosting convictions. Commonwealth v. Simcock, 31 Mass. App. Ct. 184, 196-197 (1991).
In order for the jury to find that the defendant's behavior was "disorderly," the Commonwealth was required to prove that his behavior created a "physically offensive condition for no legitimate purpose of the actor, whether the resulting harm [was] suffered in public by the public or in private by an individual." Commonwealth v. Cahill, 446 Mass. 778, 782 (2006), quoting from Commonwealth v. Chou, 433 Mass. 229, 233 (2001). As discussed supra, the defendant made unwanted physical contact with Lamarre that was both implicitly sexual and threatening. There was no error.
b. Criminal harassment. To be convicted of criminal harassment, a defendant must have willfully and maliciously engaged in a knowing pattern of conduct or a series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress. G. L. c. 265, § 43A(a), as amended by St. 2010, c. 92, § 10. The pattern of conduct must consist of at least three separate incidents. Commonwealth v. Braica, 68 Mass. App. Ct. 244, 246 (2007). The acts may include speech or conduct, but if there is harassing speech, it must not be constitutionally protected. Ibid.
The defendant contends that there was insufficient evidence of malice as the speech at issue did not contain "fighting words" or obscenity-laced remarks. Commonwealth v. Welch, 444 Mass. 80, 94-95 (2005). Commonwealth v. Braica, supra at 247. The point is immaterial where here the harassing conduct included more than speech; it included behavior, which may alone be sufficient to establish criminal harassment. Commonwealth v. Paton, 63 Mass. App. Ct. 215, 219-220 (2005). As the trial testimony established, the defendant's physical conduct toward Lamarre, on more than three occasions, seriously alarmed her and caused her substantial emotional distress. See and compare ibid.
2. Prior bad acts. Evidence of prior bad acts is inadmissible to show a defendant's bad character or propensity to commit the crime charged. Commonwealth v. Baker, 440 Mass. 519, 529 (2003). However, evidence of prior bad acts may be admissible to show a "common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive." Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). Commonwealth v. Marshall, 434 Mass. 358, 366 (2001). A trial judge must determine whether the probative value of the evidence outweighs the risk of undue prejudice to the defendant. Commonwealth v. Dwyer, 448 Mass. 122, 129 (2006).
Prior to trial, the Commonwealth filed a motion in limine that sought, in pertinent part, to offer the testimony of two women who had had similar experiences with the defendant. The Commonwealth offered the evidence to prove the defendant's state of mind, modus operandi, his pattern of conduct, to reveal the entire relationship of the parties, to negate any claim of accident, and to negate any claim of self-defense. The defendant opposed the motion, arguing that even if the testimony were relevant, its probative value would be substantially outweighed by prejudice, that there was no probative nexus between the prior acts, and that the evidence was too stale, too remote, and too similar to the current charges. The trial judge allowed the Commonwealth's motion, ruling that the proffered evidence demonstrated a pattern of operation and that it was relevant to the defendant's intent, knowledge, and state of mind on the criminal harassment and accosting charges. The defendant renews his arguments on appeal. We agree with the trial judge for the reasons he stated.
Kyla Krasnianski and Diane Lewis testified as follows. Krasnianski encountered the defendant in December, 2003, when he approached her at a Cumberland Farms store. He put himself in close proximity to her, telling her how beautiful she was and commenting on her tattoos. The defendant followed Krasnianski and asked if she liked dating older men. After reporting the incident, Krasnianski learned the defendant went back to the store and asked about her. Lewis first encountered the defendant in June, 2009, in a Cumberland Farms parking lot. The defendant drove up to Lewis, asked her if she was single, and told her that she was "gorgeous." In September, 2009, Lewis was in a Wal-Mart store when she felt she was being followed. She saw the defendant, who approached her in the parking lot, where he told her she was beautiful and asked her multiple times if she was single. Two months later, Lewis saw the defendant again at the Wal-Mart store. He approached her very closely and made similar comments before she was able to get away.
The defendant also complains that despite his stated intention to do so, the trial judge did not give a limiting instruction that this evidence was irrelevant to the charges of assault and battery, indecent assault and battery, and violation of a harassment prevention order. This argument is not supported by the record. The trial judge gave a limiting instruction, prior to the two women's testimony, explaining the nature of the evidence that the jurors were about to hear and the purposes for which it could, and could not, be considered. Moreover, the defendant was found not guilty of indecent assault battery, thereby reflecting that the jurors followed the instruction, as they are presumed to do. Commonwealth v. Andrade, 468 Mass. 543, 549 (2014). There was no error.
"The defendant is not charged with committing any crime other than the charges contained in the complaints . . . . [Y]ou're going to hear mention of other acts allegedly done by the defendant. You may not take that as a substitute for proof that the defendant committed the crimes that he's charged with . . . . Nor, may you consider the evidence that you're about to hear as proof that the defendant has a criminal personality or a bad character. You may consider it solely on the limited issues of whether the defendant acted intentionally, his state of mind, or the issues of accident or mistake. You may not consider the evidence for any other purpose, and specifically you may not use it to conclude that if the defendant committed the other acts, that he must also have committed the offenses . . . in the complaints that are before you."
The defendant also argues that he was further prejudiced by the erroneous admission of a hearsay statement by Krasnianski. Assuming this was error, the defendant was not prejudiced by the admission as the Commonwealth's case was overwhelming, the statement was brief, and was not relied upon in closing arguments.
Judgments affirmed.
By the Court (Vuono, Milkey & Blake, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 11, 2015.