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17-P-512                                                Appeals Court

                   COMMONWEALTH   vs.   PETER CHONGA.


                            No. 17-P-512.

           Middlesex.     May 2, 2018. - November 1, 2018.

               Present:   Rubin, Henry, & Desmond, JJ.


       Stalking.     Assault and Battery.    Evidence, Threat.


     Indictments found and returned in the Superior Court
Department on May 31, 2012.

     The cases were tried before Mitchell H. Kaplan, J., and a
motion for a new trial, filed on July 27, 2015, was considered
by him.


     Nelson P. Lovins for the defendant.
     Elizabeth J. May, Assistant District Attorney, for the
Commonwealth.


    RUBIN, J.     The defendant was convicted after a jury trial

of stalking in violation of G. L. c. 265, § 43 (a), and assault
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and battery in violation of G. L. c. 265, § 13A (a).1    He now

appeals.

     Background.   Viewing the evidence in the light most

favorable to the Commonwealth, see Commonwealth v. Latimore, 378

Mass. 671, 677 (1979), the jury could have found the following.

The victim and defendant were married in Malawi and moved to

Woburn together in the summer of 2009.2   Their relationship was

initially "good" but then deteriorated.   The defendant became,

in the victim's words, "controlling" and frequently demanded to

check the victim's cellular telephone (cell phone) and

electronic mail messages (e-mails).   The defendant also became

physically "abusive."   The victim testified that the defendant

"tried to choke" her, using two hands and squeezing her neck,

and threatened to kill her, something that, she testified, he

threatened to do "all the time."

     In September of 2010, the victim moved into her own

apartment in Burlington.   Although she did not tell the

defendant where she had moved, he first showed up within one or

two weeks and continued to go to her apartment about four times


     1 The defendant was found not guilty of rape, attempted
murder, assault by means of a dangerous weapon, witness
intimidation, and a second count of assault and battery.

     2 The victim moved to the United States in or about January
of 2008, working as an au pair for a family in Connecticut, and
at her request, the defendant joined her in the United States in
the summer of 2009.
                                                                    3


per month.    She would let him in because "[i]t was embarrassing

arguing outside when everybody's seeing you."    When the

defendant went in, he would check her e-mails and cell phone,

and he would telephone her friends and accuse them of sleeping

with her.    The defendant also would telephone the victim "all

the time" -- sometimes up to twenty times in a row and sometimes

with blocked numbers -- asking her where she was, and he would

follow her.   Around April 1, 2011, the defendant entered the

victim's apartment, pointed a knife at the victim's neck, and

threatened to use it to kill both her and himself.    One week

later, the defendant again turned up at the victim's apartment

uninvited.    The victim, understandably not wanting him to be

there, lied by stating that she had to go to work.    When he

discovered that this was a lie, he entered the victim's

apartment, took her cell phone and the handset from the home

telephone, threatened to kill her, and eventually hit her

repeatedly with his boot.    The victim managed to escape to a

neighbor's house, but not before, by the defendant's own

admission, he grabbed her arm while she was running out the

door.   After the victim escaped, her friend Patrick received

calls from the victim's cell phone and home telephone numbers

from a man he did not know who cursed at him and refused to tell

him the victim's whereabouts.    Patrick then called the police

and drove to the victim's apartment.
                                                                      4


    Discussion.     The defendant argues that the evidence was

insufficient to support his conviction of stalking.     The statute

provides that "[w]hoever (1) willfully and maliciously engages

in a knowing pattern of conduct or series of acts over a period

of time directed at a specific person which seriously alarms or

annoys that person and would cause a reasonable person to suffer

substantial emotional distress, and (2) makes a threat with the

intent to place the person in imminent fear of death or bodily

injury, shall be guilty of the crime of stalking . . . ."     G. L.

c. 265, § 43 (a).

    The defendant contends first that his repeated

intimidating, threatening, and physically violent conduct

directed at the victim was not "wilful" because it was not

"intentional and by design."    Commonwealth v. Peruzzi, 15 Mass.

App. Ct. 437, 443 (1983).    The defendant argues that this

conduct was "motivated by jealousy and anger."     Contrary to the

implication of his argument, this does not, even if true,

indicate that the conduct was not intentional and by design, or

that the defendant did not intend both the conduct and its

harmful consequences.

    Second, the defendant contends that his words did not

constitute threats, because there was no evidence of a "fearful

or apprehensive response."     In making this argument, he relies

on the statement in Commonwealth v. Chou, 433 Mass. 229, 234
                                                                   5


(2001), that "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."

    To begin with, we note that the defendant neither requested

nor received an instruction that the threat element of stalking

required that the victim subjectively be put in fear or

apprehension.   Rather, the jury were instructed without

objection that the threat element of stalking would be met by

proof beyond a reasonable doubt that "the defendant also made a

threat with the intention of placing the alleged victim in

imminent fear of death or bodily injury."   See Virginia v.

Black, 538 U.S. 343, 359 (2003) ("'True threats' encompass those

statements where the speaker means to communicate a serious

expression of an intent to commit an act of unlawful violence to

a particular individual or group of individuals").   On appeal,

the defendant does not claim any error in that instruction, and

the evidence was clearly sufficient to support the jury's

finding on the elements of threat and intent.

    In any event, the claim that there was no evidence of a

fearful or apprehensive response is insubstantial.   Assuming

without deciding that the language in Chou means the definition

of threat may include a requirement of subjective fear or

apprehension, not just a statement that would objectively
                                                                   6


"justify" such a response, Commonwealth v. Ditsch, 19 Mass. App.

Ct. 1005, 1005 (1985), the jury readily could have found such a

response here.   The victim testified that, with respect to the

incident in which the defendant, while pointing a knife at her

neck, told her he would kill her, "[h]e scared [her]."      Her

friend Patrick likewise testified that immediately after that

incident the victim sounded like "[s]omebody scared for her

life."3

     The defendant also argues with respect to the assault and

battery charge that the Commonwealth failed to prove the absence

of justification beyond a reasonable doubt.   One form of

"assault and battery is 'the intentional and unjustified use of

force upon the person of another, however slight.'"

Commonwealth v. Burno, 396 Mass. 622, 625 (1986), quoting

Commonwealth v. McCan, 277 Mass. 199, 203 (1931).   The jury


     3 The jury acquitted the defendant of attempted murder with
respect to the choking incident and of assault by means of a
dangerous weapon with respect to the knife incident. Even if
the jury had based its threat finding on one or both of these
incidents, and not the boot incident (which would have been
enough on its own, since the stalking statute requires only one
threat), and even if doing so would have created an inconsistent
verdict, which we do not decide, inconsistency of verdicts would
not in these circumstances undermine the guilty verdict for the
crime of stalking. See Commonwealth v. Elliffe, 47 Mass. App.
Ct. 580, 584 (1999) ("[A] defendant is not entitled to relief
where a jury returns factually inconsistent verdicts; problems
arise only where verdicts are legally inconsistent -- i.e.,
where, removed from the factual context of the particular case,
the government could not possibly have proved the elements of
both crimes with respect to the defendant").
                                                                   7


could have found beyond a reasonable doubt with respect to the

incident on April 8, 2011, that the defendant was having an

argument with the victim, was upset with her, and, therefore,

grabbed her arm as she was running out the door.   (Indeed, they

could have found that the defendant himself told this to an

officer of the Burlington police department.)   That is an

intentional and unjustified use of force upon the person of the

victim.   The defendant's argument to the contrary -- that his

action was justified because "a sudden non-violent grasp at a

spouse during an argument must fall outside the crime of battery

because of marital expectations of familiarity" -- has no

support and is anathema to the modern law of the Commonwealth,

which recognizes the fundamental humanity, and inviolable

personal integrity, of all persons, regardless of gender,

married, or single.

                                   Judgments affirmed.

                                   Order denying motion for
                                     new trial affirmed.
