Opinion
21-P-986
10-20-2022
COMMONWEALTH v. JAMILSON TEIXEIRA.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals his conviction, by jury, for violating an abuse prevention order issued under G. L. c. 209A, § 7, and challenges the trial judge's denial of his motion for a required finding of not guilty. We affirm.
Background.
The defendant was in a relationship with a woman for five years and they had a child. During the relationship, the defendant became close with the woman's mother ("mother"). He communicated with both women using both his own telephone number and those of other people. When the messages came from an unfamiliar telephone number, the women discerned that the defendant was the author based on the content of the messages. More than once, after a call from the defendant, the mother tried to call the defendant back using the same telephone number, and the call was answered by someone else.
The relationship ended a few months before September 2019. The defendant suspected that the woman was in a relationship with another person. In August of 2019, the woman obtained an abuse prevention order that prohibited the defendant from contacting her "either directly or through someone else." The defendant was present at the hearing when a judge extended the order, which remained in effect on September 23, 2019. After the restraining order was issued, the defendant and the woman had little contact.
On September 23, 2019, the mother received, by text message, a "selfie" of the defendant holding a firearm, along with other text messages that read: "Im tellin you ima end up smokin somebody before year over[.] Idgaf nomore[.] She gonna get hurt right wit hin[.] Im about to call him have him come to my backyard." The text messages came from a telephone number that the defendant had previously used to contact the mother; she had saved the number with a photograph of the woman and the defendant together. Based on conversations the mother had had with the defendant in the past, she believed these text messages were from the defendant, but when she immediately tried to call him on that telephone number, someone else answered.
That same day, after the mother contacted the police, they searched the defendant's home for the firearm in the photograph. While there, an enterprising officer took his own selfie in the bathroom mirror, which was the same bathroom mirror that framed the defendant in his armed selfie, with a background identical to that in the defendant's photograph.
Discussion.
When reviewing the denial of a "defendant's motion for a required finding of not guilty, we inquire whether the evidence, considered in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Coonan, 428 Mass. 823, 828 (1999). "In reviewing the sufficiency of the evidence, we keep in mind that the evidence relied on to establish a defendant's guilt may be entirely circumstantial, and that the inferences a jury may draw from the evidence 'need only be reasonable and possible and need not be necessary or inescapable'" (citation omitted). Commonwealth v. Linton, 456 Mass. 534, 544 (2010), S.C., 483 Mass. 227 (2019), quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
"To establish a violation of G. L. c. 209A, § 7, the Commonwealth must prove that (1) a valid G. L. c. 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order." Commonwealth v. Silva, 431 Mass. 401, 403 (2000). The defendant challenges only the sufficiency of the evidence that it was he who sent the photograph and text messages at issue.
The armed man in the threatening selfie was the defendant, and, as the investigating officer's selfie made clear, the photograph was taken in the defendant's bathroom. See Commonwealth v. Purdy, 459 Mass. 442, 450-451 (2011) (attached photograph of defendant was evidence of defendant's authorship of e-mail messages). The defendant had a history of contacting the woman through the mother and had previously called the mother from the same telephone number that was used to send the threatening messages. The jury could reasonably infer that the defendant temporarily resumed using another person's telephone to contact the woman through the mother. See Commonwealth v. Alden, 93 Mass.App.Ct. 438, 439 (2018) (defendant's prior use of telephone number from which threats originated was evidence of defendant's identity). The text messages themselves were further evidence that their jealous author was the defendant. And the mother believed, based on her previous conversations with the defendant, that the defendant had authored the messages. See Commonwealth v. Oppenheim, 86 Mass.App.Ct. 359, 368 (2014) (familiar tone and references to prior discussions corroborated authenticity of messages from apparent author).
The threatening nature of the text messages is also consistent with the hostility between the defendant and the woman, as demonstrated by the restraining order and the mother's testimony. See Alden, 93 Mass.App.Ct. at 441 ("content of the text messages reinforced their link to the defendant"). And, given the subject matter of the messages, a jury could infer that the messages were intended to be relayed to the woman, and that the defendant sent the photograph of himself holding a firearm to support the threat against a purported male associate of the woman's. See Commonwealth v. Gerhardt, 477 Mass. 775, 788 (2017) ("Jurors are permitted to utilize their common sense in assessing trial evidence").
Judgment affirmed.
Neyman, Ditkoff & Hershfang, JJ.
The panelists are listed in order of seniority.