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14-P-1283                                            Appeals Court

                 COMMONWEALTH   vs.   PAUL MUCKLE.


                         No. 14-P-1283.

      Suffolk.     September 10, 2015. - October 3, 2016.

             Present:   Green, Rubin, & Hanlon, JJ.


Intimidation of Witness. Threatening. Stalking. District
     Court, Jurisdiction. Boston Municipal Court. Practice,
     Criminal, Duplicative convictions, Lesser included offense,
     Instructions to jury.


     Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on April 12, 2012.

     The case was tried before Annette Forde, J., and a motion
to vacate was heard by her.


     Edward Gauthier for the defendant.
     Zachary Hillman, Assistant District Attorney, for the
Commonwealth.


    HANLON, J.   After a jury trial in the Boston Municipal

Court, the defendant was convicted of intimidating a person

furthering a court proceeding in violation of G. L. c. 268,

§ 13B (count 1); stalking in violation of G. L. c. 265, § 43

(count 2); threatening to commit a crime in violation of G. L.
                                                                       2


c. 275, § 2 (count 3); and unlawful wiretapping in violation of

G. L. c. 272, § 99 (count 4).    Afterwards, he filed a motion to

vacate his conviction on count 1, which was allowed, and that

count was dismissed.    We have before us the Commonwealth's

appeal of that dismissal, and the defendant's cross appeal of

his remaining convictions on all counts except count 4.      We

reinstate the defendant's conviction on count 1 and affirm the

other judgments.    We remand the case to the trial court for

imposition of the original sentences imposed after trial.

     Background.    Viewing the evidence in the light most

favorable to the Commonwealth, the jury could have found the

following facts:1

     At some point prior to 2009, the defendant's mother, Irene

Wood, obtained a loan from Wells Fargo Bank (Wells Fargo).

Subsequently, the defendant filed suit against Wells Fargo in

Superior Court, alleging that his mother's loan was predatory,

fraudulent, and unenforceable.    Thereafter, the defendant filed

another suit against Wells Fargo, among others, in the United

States District Court for the District of Massachusetts.       Wells

Fargo retained the law firm of Nelson, Mullens, Riley and

Scarborough (Nelson, Mullens) as defense counsel, and when Sean



     1
       As the unlawful wiretap conviction (count 4) was not
challenged on appeal, the facts giving rise to that conviction
are not summarized here.
                                                                   3


Higgins joined Nelson, Mullens in February, 2009, he was

assigned to work on the ongoing case.

    Because the defendant was representing himself pro se in

the Federal suit, he and Higgins communicated fairly regularly

about the case by telephone, electronic mail message (e-mail),

and first class mail.   At the beginning, these communications

were in no way out of the ordinary.   However, after some period

of time, the defendant added Higgins's e-mail address to a large

e-mail list and Higgins began to receive what he described as

"spam" e-mails.

    In March, 2010, Judge Douglas P. Woodlock of the United

States District Court allowed Wells Fargo's motion for summary

judgment and dismissed the Federal case, and shortly thereafter,

the defendant filed an appeal with the United States Court of

Appeals for the First Circuit (First Circuit).   After Judge

Woodlock dismissed the case, the tone of the defendant's e-mails

and other communications to Higgins began to change.

Specifically, on May 2, 2010, the defendant sent an e-mail

accusing Higgins of "disrespect[ing]" the defendant's mother and

included a link to a video on the video sharing Web site YouTube

of a telephone conversation between the defendant and Higgins.

On June 2, 2010, the defendant sent an e-mail to a large mailing

list with a motion attached that he said he intended to file in

the Federal suit.   The body of the e-mail said, in part, that
                                                                   4


"[t]his motion is about to send thunder claps upon Wall Street

when they read it.   READ IT AND WEEP ATTORNEY SEAN HIGGINS AND

JUDGE DOUGLAS P. WOODLOCK, YOUR JUDGMENT IS AT HAND."

    On June 4, 2010, the defendant sent an e-mail to a large

mailing list, which contained a link to a YouTube video.   The

body of the e-mail said, in part, "[L]et this video serve as a

warning to Sean Higgins, Judge Woodlock, and anyone else who

seeks to commit impropriety in the court . . . . I am trying to

do this in a non destructive [sic] manner, but you guys just

keep on testing MY LORD . . . . ow [sic] much longer do you

supposed [sic] that He will remain patient before commanding me

to end it!   in my own way!"

    On August 12, 2010, the defendant forwarded a mass e-mail

that contained a warning about bombs made from ordinary

household items, such as plastic bottles.   Above the forwarded

message, the defendant wrote, in part, "I am even sending this

to my opponents Attorney Dudley Goar [sic] and Attoryney [sic]

Sean Higgins.   I want them to be very careful because want [sic]

them to be in one piece and in good health when we face off in

the First Circuit court, I will get more satisfaction from that,

so guys, read below and be safe."

    There was then a lull until October, 2011.    During that

month, the defendant telephoned Higgins and left him a voice

mail message.   In the message, the defendant called Higgins a
                                                                      5


"bastard" and said that he did not like him.   Higgins testified

that, at one point during the litigation, the defendant was

telephoning him once or twice per week, but later, after some

time, the number of calls decreased.   Sometime before October

12, 2011, the defendant's appeal was dismissed by the First

Circuit, and Higgins testified that, right after the appeal was

over, the telephone calls stopped.

    On October 12, 2011, the defendant sent an e-mail to a

large mailing list saying that the First Circuit had ruled

against him and that "the first bloodshed will come from

Massachusetts before I let ANY ONE take me out of my home."      On

October 19, 2011, the defendant sent an e-mail to a large

mailing list saying, in part, "SEAN HIGGINS, REMEMBER HOW MUCH I

DETEST YOU . . . I WILL NEVER FORGET THAT YOU DISRESPECT [sic]

MY MOTHER AND CALLED HER A LIAR . . . LET'S SEE WHO WILL BE THE

LIAR WHEN YOU FACE A JURY OF THE REVOLUTION . . . THERE IS A

PRISON CELL WAITING FOR YOU AT SOUTH BAY FOR YOUR CRIMES . . . .

YOU WILL BE TRIED FOR TREASON AGAINST THE PEOPLE . . . ."    On

February 2, 2012, the defendant sent an e-mail to a large

mailing list saying, in part, "DO NOT LET MY DEATH BE IN VAIN,

MAKE SURE YOU PUT THE BLAME SQUARELY ON SEAN HIGGINS!   AND JUDGE

WOODLOCK THE DAY THEY BURY ME!   THEY WILL CAUSE MY BLOODSHED."

    On April 1, 2012, the defendant sent an e-mail to a large

mailing list saying, in part, "Sean Higgins!   you [sic] are the
                                                                      6


only man on Earth I hate beside [sic] the pope and the

Rothschild [sic], and I hate you even more than I hate them

. . . I cannot wait to roast you!     Not even god will intervene

for you when I get my hand around your fat heart . . . . Is your

heart light like a feather, or is it heavy as lead!?"      On April

12, 2012, a criminal complaint was issued in the Boston

Municipal Court against the defendant for the present offenses.

     Discussion.    a.   The Commonwealth's appeal.   After the

defendant was convicted and sentenced, he filed a motion to

vacate his conviction of intimidation under G. L. c. 268, § 13B

(count 1).    The trial judge allowed the motion and vacated the

conviction.    In so doing, she agreed with the defendant that the

Boston Municipal Court was without jurisdiction to hear that

charge because the statute conferring jurisdiction in the

District and Boston Municipal Courts over certain criminal

matters refers to "intimidation of a witness or juror under

section thirteen B of chapter two hundred and sixty-eight."

G. L. c. 218, § 26.      She concluded that this language provided

the Boston Municipal Court with jurisdiction only over charges

under that section alleging intimidation of a "witness" or a

"juror."2    The language of the intimidation statute itself, that



     2
       The full text of G. L. c. 218, § 26, as amended through
St. 2010, c. 74, § 1A, provides:
                                                                 7


is, G. L. c. 268, § 13B, is broader than that, and in this case,

         "The district courts and divisions of the Boston
    municipal court department shall have original
    jurisdiction, concurrent with the superior court, of the
    following offenses, complaint of which shall be brought in
    the court of the district court department, or in the
    Boston municipal court department, as the case may be,
    within which judicial district the offense was allegedly
    committed or is otherwise made punishable: -- all
    violations of by-laws, orders, ordinances, rules and
    regulations, made by cities, towns and public officers, all
    misdemeanors, except libels, all felonies punishable by
    imprisonment in the state prison for not more than five-
    years, the crimes listed in paragraph (1) of subsection (a)
    of section eight of chapter ninety B, subparagraph (1) of
    paragraph (a) of subdivision (1) of section twenty-four,
    paragraph (a) of section twenty-four G and paragraph (1) of
    section twenty-four L of chapter ninety, paragraph (a) of
    section thirty-two and paragraph (a) of section thirty-two
    A of chapter ninety-four C, and section thirty-two J of
    chapter ninety-four C, section 38B of chapter 127, section
    one hundred and thirty-one E of chapter one hundred and
    forty, sections thirteen K, fifteen A and twenty-one A of
    chapter two hundred and sixty-five and sections sixteen,
    seventeen, eighteen, nineteen, twenty-eight, thirty, forty-
    nine and one hundred and twenty-seven of chapter two
    hundred and sixty-six, and sections one, fifteen and
    fifteen A of chapter two hundred and seventy-three, and the
    crimes of malicious destruction of personal property under
    section one hundred and twenty-seven of chapter two hundred
    and sixty-six, indecent assault and battery on a child
    under fourteen years of age, intimidation of a witness or
    juror under section thirteen B of chapter two hundred and
    sixty-eight, escape or attempt to escape from any penal
    institution, forgery of a promissory note, or of an order
    for money or other property, and of uttering as true such a
    forged note or order, knowing the same to be forged. They
    shall have jurisdiction of proceedings referred to them
    under the provisions of section four A of chapter two
    hundred and eleven."

     We note that the statute was further amended in 2014, but
that amendment does not bear on this case.
                                                                   8


the defendant was convicted of intimidating a "person who [was]

furthering a civil . . . proceeding."   G. L. c. 268,

§ 13B(1)(c)(iv), as amended through St. 2010, c. 256, § 120.

The Commonwealth appeals this dismissal, raising a question of

first impression.   After review of the record and the relevant

legislative history, we are persuaded that the judge's

interpretation is wrong and the conviction on count 1 should be

reinstated.

    General Laws c. 218, § 26, controls which crimes may be

prosecuted in the District and Boston Municipal Courts.     The

statute's history tracks the growth of those courts from what

were termed "police courts" to the community courts they are

today.   See Berg, Rough Justice to Due Process, The District

Courts of Massachusetts 1869-2004 2-4, 71-76 (2004).     The

statute begins with these words, "The district courts and

divisions of the Boston municipal court department shall have

original jurisdiction, concurrent with the superior court, of

the following offenses . . . ."

    The first three categories of offenses listed thereafter

include, first, "all violations of by-laws, orders, ordinances,

rules and regulations, made by cities, towns and public

officers"; second, "all misdemeanors, except libels"; and third,

"all felonies punishable by imprisonment in the state prison for
                                                                   9


not more than five-years . . . ."3   The sixth category is a

series of offenses described only by their statutory citations

(i.e., "sections thirteen K, fifteen A and twenty-one A of

chapter two hundred and sixty-five and sections sixteen,

seventeen, eighteen, nineteen, twenty-eight, thirty, forty-nine

and one hundred and twenty-seven of chapter two hundred and

sixty-six").

     That category is followed by a seventh category, the one at

issue in this case; it includes one offense only by description

(as in category six), and two offenses referring to the

applicable statute and a short description.   Specifically, this

seventh category includes, in its entirety, "the crimes of

malicious destruction of personal property under section one

hundred and twenty-seven of chapter two hundred and sixty-six,

indecent assault and battery on a child under fourteen years of

age, [and] intimidation of a witness or juror under section

thirteen B of chapter two hundred and sixty-eight."   The final,

or eighth, category includes a list of common-law crimes, with

no citation to a statute (i.e., "escape or attempt to escape

from any penal institution, forgery of a promissory note, or of

an order for money or other property, and of uttering as true

such a forged note or order, knowing the same to be forged").

     3
       The fourth and fifth categories include specific sections
of G. L. c. 90 and c. 90B (relating to motor vehicle and motor
boat offenses) and G. L. c. 94C (controlled substances).
                                                                  10


    "'Courts must ascertain the intent of a statute from all

its parts and from the subject matter to which it relates, and

courts must interpret the statute so as to render the

legislation effective, consonant with reason and common sense.'

Cote-Whitacre v. Department of Pub. Health, 446 Mass. 350, 358

(2006) (Spina, J., concurring)."   Rotondi v. Contributory

Retirement Appeal Bd., 463 Mass. 644, 648 (2012).   The most

sensible reading of the relevant portion of the jurisdiction

statute, that is, the seventh category discussed supra, is that

the Legislature's inclusion in that statute of the citation to

G. L. c. 268, § 13B, prohibiting intimidation of a witness (and,

for that matter, G. L. c. 266, § 127, prohibiting malicious

destruction of property, which falls in the same category) was

intended to include all of the offenses made criminal therein,

including the behavior prohibited in subsequent amendments to

the underlying criminal statute.

    The legislative history of G. L. c. 268, § 13B, supports

that interpretation.   Thus, in September, 1996, in order to

increase the maximum penalty for the crime of intimidation, the

statute was amended "by striking out . . . the words 'the state

prison for not less than two and one-half years and not more

than five' and inserting in place thereof the following words:—

a house of correction for not more than two and one-half years

or in the state prison for not less than two and one-half years
                                                                    11


and not more than ten."   St. 1996, c. 393, § 4.   That amendment

effectively removed G. L. c. 268, § 13B, from the jurisdiction

of the District and Boston Municipal Courts because that crime

was then no longer a "felon[y] punishable by imprisonment in the

state prison for not more than five-years."

    However, in the same 1996 act, which, significantly, was

entitled "Chapter 393.    An Act Providing Concurrent Jurisdiction

in the Superior and District Courts for the Crime of

Intimidation of a Witness" (emphasis added), St. 1996, c. 393,

G. L. c. 218, § 26, also was amended by inserting after the word

"[fourteen years of] 'age', . . . the following words:— ,

intimidation of a witness or juror under section thirteen B of

chapter two hundred and sixty-eight."    St. 1996, c. 393, § 1.

Thus, at the same time, jurisdiction was restored to the

District and Boston Municipal Courts for the crime of

intimidation.   The idea that, in so doing, the Legislature

intended that intimidation of a witness or a juror be prosecuted

either in the Superior Court or the District and Boston

Municipal Courts, but thereafter reserved for exclusive Superior

Court jurisdiction intimidation of "persons furnishing

information in connection with a criminal investigation, and

. . . 'criminal investigators'" (a crime that had been covered

by the earlier version of the statute, see St. 1970, c. 177,

and, thus, had been within the jurisdiction of the District and
                                                                   12


Boston Municipal Courts since 1970) simply is not reasonable,

much less likely.4

     In 2006, Governor Romney signed into law a bill entitled

"An Act Reducing Gang Violence."   See St. 2006, c. 48.   Among

other provisions of that act was the revision of G. L. c. 268,

§ 13B, to broaden its reach.   In 2010, the statute was amended

again effective November 4, 2010, substituting the amended

clause (iv), providing:   "a person who is furthering a civil or

criminal proceeding, including criminal investigation, grand

jury proceeding, trial, other criminal proceeding of any type,

probate and family proceeding, juvenile proceeding, housing

proceeding, land proceeding, clerk's hearing, court ordered

mediation, any other civil proceeding of any type," see St.

2010, c. 256, § 120, for the former clause (iv), which read:      "a

person who is or was furthering a criminal investigation, grand

jury proceeding, trial or other criminal proceeding of any

type," see St. 2006, c. 48, § 3.   The same amendment substituted

the following clause (v), providing:   "a person who is or was

attending or had made known his intention to attend a civil or

criminal proceeding, including criminal investigation, grand
     4
       We note that, while the title of the act referred to
"Intimidation of a Witness," the language of the statute itself
used the phrase "intimidation of a witness or juror," thus
supporting the inference that it was the statute as a whole and
not merely some of its parts that were to be included in the
District and Boston Municipal Courts' jurisdiction. See St.
1996, c. 393, § 1.
                                                                   13


jury proceeding, trial, other criminal proceeding of any type,

probate and family proceeding, juvenile proceeding, housing

proceeding, land proceeding, clerk's hearing, court-ordered

mediation, any other civil proceeding of any type with the

intent to impede, obstruct, delay, harm, punish or otherwise

interfere thereby, or do so with reckless disregard, with such a

proceeding . . . ," see St. 2010, c. 256, § 120, for the former

clause (v), which read:   "a person who is or was attending or

had made known his intention to attend a grand jury proceeding,

trial or other criminal proceeding of any type with the intent

to impede, obstruct, delay, harm, punish or otherwise interfere

thereby with a criminal investigation, grand jury proceeding,

trial or other criminal proceeding of any type . . . ," see St.

2006, c. 48, § 3.

    "'[A] statute must be interpreted according to the intent

of the Legislature ascertained from all its words construed by

the ordinary and approved usage of the language, considered in

connection with the cause of its enactment, the mischief or

imperfection to be remedied and the main object to be

accomplished, to the end that the purpose of its framers may be

effectuated.'   Commonwealth v. Figueroa, 464 Mass. 365, 368

(2013), quoting from Harvard Crimson, Inc. v. President &

Fellows of Harvard College, 445 Mass. 745, 749 (2006).   Where a

literal reading would 'lead to an awkward and even intolerable
                                                                   14


result,' we will eschew it 'for a more liberal or more

encompassing approach.'   Mailhot v. Travelers Ins. Co., 375

Mass. 342, 348 (1978)."   Rodman v. Rodman, 470 Mass. 539, 541

(1978).   Again, the notion that the Legislature, over the years

between 1996 and 2010, while dramatically increasing both the

penalty and the scope of the intimidation statute to protect

more and more people victimized by the crime of intimidation,

was at the same time performing the kind of jurisdictional

gymnastics envisioned by the defendant is fanciful at best, and

certainly not "consonant with reason and common sense."     Rotondi

v. Contributory Retirement Appeal Bd., 463 Mass. at 648.

    The court's analysis in Wilcox v. Riverside Park

Enterprises, Inc., 21 Mass. App. Ct. 419, 420 n.2 (1986), is

instructive here.   In Wilcox, this court said, "[A]n official

title to an act does not control the plain provisions of the

statute, and, if there is any variation between the title and

the body of the statute, the latter governs."   Ibid.   Compare

Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 458-459 (1999)

(when caption and body of indictment are in discord, body of

indictment governs).   Thus, focusing solely on the statutory

language as instructed, G. L. c. 268, § 13B, clearly outlines

five separate subsections of persons to be protected from

intimidation.   G. L. c. 268, § 13B(1)(c)(i)-(v).   Subsection (i)

pertains to those witnesses warranting protection; subsection
                                                                   15


(iii) includes "juror" (or grand juror) embedded within a long

list of others (including law enforcement, the judge, and other

court personnel).   It is unreasonable to conclude that the

Legislature intended, with the phrase "intimidation of a witness

or juror," to cherry pick only witnesses or jurors from a

substantial list of others in prescribing jurisdiction.

    The dissent's citation to Della Jacova v. Widett, 355 Mass.

266 (1969), is not helpful here.    There, in the context of a

civil malicious prosecution case, the court noted that a

conviction of the plaintiff of the crime of forgery under G. L.

c. 267, § 1, in a Municipal Court was beyond the jurisdiction of

that court and did not establish conclusively that there had

been probable cause for the prosecution.     Id. at 273-274.

However, G. L. c. 218, § 26, does not refer to G. L. c. 267,

§ 1, but only "forgery of a promissory note, or of an order for

money or other property, and of uttering as true such a forged

note or order, knowing the same to be forged."    That language

places that crime not in the seventh category, but in the eighth

category, described supra at       -- that is, a list of common-law

crimes, with no citation to a statute.    In the case before us,

by contrast, there is a reference to the relevant statute:       that

is, "intimidation of a witness or juror under section thirteen B

of chapter two hundred and sixty-eight" is placed specifically
                                                                   16


within the jurisdiction of the District and Boston Municipal

Courts.

     Both intimidation cases under G. L. c. 268, § 13B, and

cases of malicious destruction of all kinds of property under

G. L. c. 266, § 127, are tried routinely in the District and

Boston Municipal Courts -- without regard for the distinctions

urged.    See Instruction 7.360 of the Criminal Model Jury

Instructions for Use in the District Court (rev. May, 2014).

See also Instruction 8.280 of the Criminal Model Jury

Instructions for Use in the District Court (2009).

     In addition, both the intimidation of a witness statute and

the malicious destruction of property statute, along with their

respective legislative histories, have been analyzed extensively

by the Supreme Judicial Court, each time reviewing a case tried

in the District Court on a charge for which the dissent's

analysis would conclude that court had no jurisdiction.      See

Commonwealth v. Hamilton, 459 Mass. 422 (2011) (where the

defendant was tried in the District Court for intimidating a

probation officer).5   See also Commonwealth v. Deberry, 441 Mass.

211, 214-215 (2004) (where the defendant was tried in the


     5
       While the conviction in Hamilton, 459   Mass. at 435, was
reversed on the ground that the intimidation   took place after
all criminal proceedings had ended, behavior   not made criminal
by the then-existing version of the statute,   nowhere in the
opinion does the court express concern about   the jurisdiction of
the District Court to hear the case.
                                                                   17


District Court for violation of G. L. c. 266, § 127,

specifically, damage to a kitchen wall; the court noted that the

offense was prohibited by the statute because "amendments to the

statute in 1978 expanded personal property covered by the

statute to encompass real property, i.e., 'dwelling house' or

'building.'   See St. 1978, c. 544 . . . ").6

    Finally, while not controlling, it is worth noting that the

practical effect of the dissent's position would be to curtail

drastically the ability of the Commonwealth to prosecute these

crimes -- contrary, one would think, to the intent of the

Legislature -- by placing them on Superior Court dockets already

bursting with murder, aggravated rape, armed robbery,

trafficking, and other serious criminal -- and civil -- cases.

In addition, because the dissent concludes that the case turns

on jurisdiction, the result urged would open up for collateral

attack every such conviction in the last twenty years.   We are

satisfied that count 1 should not have been dismissed.

    b.   The defendant's cross appeal.   In his cross appeal, the

defendant makes several arguments.   The first is a claim that a

threat to commit a crime is a lesser included offense of

stalking and therefore that charge should have been dismissed as


    6
       The decision in Deberry, 441 Mass. at 215, turned on the
issue whether the relevant amount for determining if the damage
was in excess of $250 was the amount of damage to the property
or the value of the property itself.
                                                                    18


duplicative.   Applying the familiar, elements-based approach to

double jeopardy issues articulated by the Supreme Judicial Court

in Commonwealth v. Vick, 454 Mass. 418, 431 (2009), it is clear

that the argument fails because each crime contains elements not

present in the other.   Thus, for example, while stalking

requires proof that the defendant "[made] a threat with the

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

injury," stalking also requires proof that the defendant

"willfully and maliciously engage[d] in a knowing pattern of

conduct or series of acts over a period of time directed at a

specific person which seriously alarm[ed] or annoy[ed] that

person and would cause a reasonable person to suffer substantial

emotional distress."    G. L. c. 265, § 43(a), as amended through

St. 2010, c. 92, § 9.

    By contrast, threat to commit a crime requires proof that

what was threatened was a crime.   See G. L. c. 275, § 2;

Commonwealth v. Hamilton, 459 Mass. at 426-427.    Thus, a person

could be convicted of a threat to commit a property crime, and

if that were the only threat, despite proof that the defendant

"willfully and maliciously engage[d] in a knowing pattern of

conduct or series of acts over a period of time directed at a

specific person which seriously alarm[ed] or annoy[ed] that

person and would cause a reasonable person to suffer substantial
                                                                    19


emotional distress," he or she could not be convicted of

stalking.   See G. L. c. 265, § 43(a).

     Next the defendant argues that there is an error in the

docket sheet and mittimus with respect to his sentence on count

2.   On count 1, the defendant was sentenced to two years in the

house of correction, with one year to serve, and the balance

suspended until April 24, 2019.    On count 2, he was sentenced to

two years in the house of correction from and after count 1,

suspended until April 24, 2019.    The docket sheet and the

mittimus, however, both state that on count 2 the defendant was

sentenced to two years in the house of correction committed.

     At the hearing on the motion to dismiss, after dismissing

count 1, the clerk read the following sentence into the record:

     "The Court has vacated without prejudice your finding of
     guilty as to Count 1 and the sentence thereafter of two
     years, one to serve, the balance suspended until April
     24th, 2019. And Counts 2, 3 and 4 stand as imposed on
     April 30th. Count 2 is two years in the house of
     correction, sentence is suspended until April 24th of 2019.
     Count 3 is six months in the house of corrections suspended
     until April 24th of 2019 from and after Count 2. And Count
     4 is committed to the house of corrections, six months,
     sentence suspended to from and after Count 3."

The judge responded, "Thank you.   All set."   After a discussion

between the judge and the clerk about the mittimus, the judge

confirmed, "There's no change in the sentence except that . . .

Count 1 was vacated."
                                                                  20


    In light of this, we agree with the Commonwealth, which

concedes that the docket sheet and mittimus must be amended to

reflect that the defendant's two-year sentence on count 2 should

have remained a suspended sentence.   In any event, however,

because we reinstate the conviction on count 1, the original

sentences must stand.

    The defendant argues next that there was insufficient

evidence to support his conviction of stalking because there was

no threat made with intent to place the victim in imminent fear

of death or bodily injury.   In light of all of the evidence

detailed above, including the e-mail about explosive water

bottles, and the e-mail stating that the defendant could not

"wait to roast" the victim and would "get [his] hand around [the

victim's] fat heart," we are satisfied that the evidence was

sufficient to support the defendant's conviction of stalking.

    In addition, we reject the defendant's argument that there

was insufficient evidence to support his conviction of

threatening to commit a crime, to wit, to kill.   See

Commonwealth v. Hamilton, 459 Mass. at 427, quoting from

Commonwealth v. Sholley, 432 Mass. 721, 724-725 (2000) ("The

elements of threatening a crime include an expression of

intention to inflict a crime on another and an ability to do so
                                                                    21


in circumstances that would justify apprehension on the part of

the recipient of the threat").

    Finally, the defendant raises several unpreserved claims of

error with respect to the jury instructions.   We review these

claims to determine if there was error and, if so, whether the

error created a substantial risk of a miscarriage of justice.

See Commonwealth v. Kelly, 470 Mass. 682, 697 (2015).     In sum,

we see no error and certainly no substantial risk of a

miscarriage of justice.

    The defendant argues that the judge erred in giving the

stalking instruction without also, sua sponte, instructing the

jury on the lesser included offense of harassment.    In the

defendant's view, because his defense was that he never intended

to threaten or frighten the victim, a harassment instruction was

warranted.   The defendant did not request such an instruction.

"[I]n the absence of any request by the defendant for such an

instruction, or of any indication that the defendant brought

this interpretation of the facts to the judge's attention, the

judge was not required to give the instruction sua sponte."

Commonwealth v. Tavares, 471 Mass. 430, 439 (2015).     Moreover,

as the Commonwealth argues, giving an instruction on harassment

could have prevented the defendant from obtaining the outright

acquittal he sought on the stalking charge.    Finally, even if

the judge should have discussed with defense counsel in a charge
                                                                  22


conference the possibility of giving a lesser included offense

instruction, the fact that the jurors convicted the defendant of

threatening to kill the victim indicates that it is unlikely

that they would have convicted him only of the lesser offense of

harassment, rather than stalking, even had they been given the

option.

    The jury also were not given a specific unanimity

instruction on the charge of threat to commit a crime.   Again,

there was no request for such an instruction, and this case

therefore is controlled by Commonwealth v. Julien, 59 Mass. App.

Ct. 679, 686 (2003), which holds that, in these circumstances,

the failure of a judge sua sponte to give a specific unanimity

instruction does not create a substantial risk of a miscarriage

of justice.

    The defendant raises two claims of error with respect to

the instructions on the intimidation charge.   Because the

defendant did not clearly object at trial, again, we review for

error and, if there was error, we review for whether the error

gave rise to a substantial risk of a miscarriage of justice.

See Commonwealth v. Kelly, 470 Mass. at 697.

    The defendant argues first that the judge erred in

including the words "harm" or "punish" in explaining the

elements of the intimidation of a witness charge to the jurors,
                                                                   23


because the Supreme Judicial Court had determined in

Commonwealth v. Hamilton, 459 Mass. at 432-436, that those terms

were ambiguous.   The defendant’s argument is misplaced.   It is

true that the Supreme Judicial Court "invited" the Legislature

to clarify the ambiguity in the 2006 version of § 13B

"particularly as it relates to retaliatory conduct."    Id. at

436.    However, the court did not instruct that the terms "harm"

or "punish" could no longer be used in instructing the jury on

the elements of the charge.    Although the judge here may not

have provided a strict reading of the intimidation of a witness

model jury instruction, he was not required to do so, so long as

all of the elements of the crime were included in the

instruction given.    See Commonwealth v. Robinson, 449 Mass. 1, 8

(2007) ("A judge need not use any particular words in

instructing the jury as long as the legal concepts are properly

described").   There was no error.

       The defendant next asserts that he prepared his case with

the understanding that the Commonwealth's theory of the case was

that Higgins was a "defense attorney."    However, the judge

charged the jury that the statute also would punish behavior

intimidating "anyone who might be involved in a court

proceeding," "an attorney," and "whatever, someone involved in a

court proceedings."    In the defendant's view, this instruction
                                                                    24


improperly extended the statute's protection to "basically

anyone involved in the court system."   This argument also fails.

The evidence presented at trial informed the jury that Higgins

was one of the attorneys representing Wells Fargo in the various

ongoing civil suits involving the defendant, which places

Higgins squarely in the realm of protection afforded by the

intimidation statute.   See G. L. c. 268, § 13B(1)(c)(iv).    To

say that Higgins, the lawyer for Wells Fargo, was just "anyone"

utilizing the court system is disingenuous.   Again, we discern

no error in the judge's final charge to the jury, and certainly

no substantial risk of a miscarriage of justice.    See

Commonwealth v. Kelly, supra.

    Conclusion.   The order dismissing count 1 is reversed.        The

defendant's conviction on count 1 is reinstated, and his

convictions on the remaining counts are affirmed.   We remand the

matter for further proceedings, including imposition of the

original sentences, consistent with this opinion.

                                   So ordered.
    RUBIN, J. (dissenting in part and concurring in part).        I

join so much of the court's opinion as affirms the defendant's

convictions.     Count 1, however, which charged the defendant with

intimidation of a person furthering a court proceeding in

violation of G. L. c. 268, § 13B, was properly dismissed by the

trial judge on the basis of the plain language of the

jurisdictional statute, G. L. c. 218, § 26, language consciously

and deliberately adopted by the Legislature.    Because we are

without power to ignore or amend that language, I respectfully

dissent from that portion of the court's opinion reversing the

trial judge's order of dismissal.

    The plain language of G. L. c. 218, § 26, as amended

through St. 1996, c. 393, § 1, says that the District and Boston

Municipal Courts have jurisdiction over prosecutions for

"intimidation of a witness or juror under section thirteen B of

chapter two hundred and sixty-eight," not over cases of

intimidation of any other individuals brought under that

section.   Likewise, the criminal complaint in this case

explicitly says, "Superior Court jurisdiction, however, District

Court has final jurisdiction for a witness or juror under G. L.

c. 218, § 26."    Relying on the plain language of the statute,

the Boston Municipal Court judge properly dismissed count 1.

Where the language of the statute is plain, that should be the
                                                                    2


end of our enquiry.   If the Legislature chooses to amend the

statute, of course it has power to do so.

    Even were the statute ambiguous, however -- and in the end

the majority acknowledges it is not -- there is conclusive

evidence that the Legislature intended to give the District and

Boston Municipal Courts jurisdiction only over intimidation

cases made criminal by G. L. c. 268, § 13B, where the victim was

a witness or juror.

    To begin with, the question is the meaning of the 1996 Act

that inserted the relevant words in G. L. c. 218, § 26, St.

1996, c. 393 (the 1996 Act), not the meaning (or history) of the

subsequent amendments to the substantive criminal statute, G. L.

c. 268, § 13B, on which the majority focuses.   The 1996 Act

increased the maximum sentence for a violation of § 13B, which

had been five years in State prison, to ten years in State

prison.   This had the effect not only of making violation of the

statute a more serious crime but also of, commensurate with

that, taking all acts criminalized by the statute out of the

broad grant to District and Boston Municipal Courts of

jurisdiction over any crimes punishable by imprisonment in the

State prison for not more than five years.   The 1996 Act at the

same time, however, inserted into § 26 the words "intimidation

of a witness or juror under section thirteen B of chapter two

hundred and sixty-eight."
                                                                     3


     At the time of the 1996 Act, the structure of G. L. c. 268,

§ 13B, was different than it is today in a way that makes the

"witness or juror" limitation understandable.   The version in

effect when the 1996 Act was adopted read:   "Whoever, directly

or indirectly, willfully endeavors . . . by misrepresentation,

intimidation, force or threats of force to influence, impede,

obstruct, delay or otherwise interfere with any witness or juror

in any stage of a trial or other criminal proceeding or with any

person furnishing information to a criminal investigator

relating to a violation of a criminal statute of the

commonwealth . . . shall be punished . . ." (emphasis added).

G. L. c. 268, § 13B, as appearing in St. 1990, c. 369.1    As this

court explained contemporaneously in Commonwealth v. Isle, 44

Mass. App. Ct. 226, 228 (1998), "[t]he language of the witness

intimidation statute has two distinct branches, separated by the

word 'or.' The statute may be applied either to witnesses and

jurors in ongoing criminal proceedings, or to any person

furnishing information to a criminal investigator relating to a

crime."

     Given the contemporaneous understanding of the statute to

have two branches, it makes perfect sense that the Legislature

might have intended precisely the result its language achieved

     1
       The 1996 Act itself added ", grand jury" after the word
"trial" in the quoted text, but left this language otherwise
intact. See St. 1996, c. 393, § 3.
                                                                      4


with respect to the now-harsher statute:   giving concurrent

jurisdiction to the District and Boston Municipal Courts over

first branch intimidation cases involving ongoing criminal

proceedings, but leaving the Superior Court alone with

jurisdiction over cases brought under the other branch of the

statute, which at that time included only those involving

persons furnishing information to a criminal investigator.     This

result does not involve jurisdictional gymnastics; it amounts to

a commonplace act of legislative line drawing.

    Indeed, and perhaps most significantly, there is conclusive

evidence that the decision to draw this line was intentional and

not some mere accident of careless phrasing.   As it was

originally introduced, the bill that would become the 1996 Act

would actually have inserted the language "section 13B of

chapter two hundred and sixty-eight" into G. L. c. 218, § 26,

which would have given the District and Boston Municipal Courts

concurrent jurisdiction over all crimes under the statute.     See

1996 Senate Doc. No. 2264 (introduced March 21, 1996).     It was

amended during the legislative process to specify that

concurrent jurisdiction was conferred only to prosecutions of

"intimidation of a witness or juror" under that section.

    Consistent with this, the original draft bill would have

inserted the language into the portion of the statute that lists

crimes only by statutory section and subsection numbers.    The
                                                                     5


final bill, however, inserted the modified language into a

different portion of the statute that contains verbal

descriptions of covered crimes.2

     This statutory history, not mere "legislative history," but

the history of the text of the statute itself, clarifies any

ambiguity and confirms that the Legislature deliberately limited

the scope of District and Boston Municipal court jurisdiction

with respect to acts made criminal under G. L. c. 268, § 13B, to

the "witnesses and jurors" branch of the statute.

     To be sure, G. L. c. 268, § 13B, was amended dramatically

in 2006 so that it now covers much more conduct.    Under the 2006

amendments, intimidation of many other categories of individuals

was criminalized.   St. 2006, c. 48, § 3.   And in 2010, the

statute was amended again to include the category relevant here,




     2
       It suffices for present purposes to note that the statute
contains the two portions I have described. While Borges might
admire the ponderous eight-branch taxonomy put forward by the
court majority, I find it more confusing than helpful. Cf.
Borges, The Analytical Language of John Wilkins, in Other
Inquisitions 1937-1952 (Ruth L. Simms trans. University of Texas
Press, 1964) (purporting to quote a Chinese encyclopedia, the
Celestial Emporium of Benevolent Knowledge, that states that
"animals are divided into [a] those that belong to the Emperor,
[b] embalmed ones, [c] those that are trained, [d] suckling
pigs, [e] mermaids, [f] fabulous ones, [g] stray dogs, [h] those
that are included in this classification, [i] those that tremble
as if they were mad, [j] innumerable ones, [k] those drawn with
a very fine camel's hair brush, [l] others, [m] those that have
just broken a flower vase, [n] those that resemble flies from a
distance").
                                                                    6


"a person who is furthering a civil or criminal proceeding."

St. 2010, c. 256, § 120.

      Nonetheless, the Legislature has not amended G. L. c. 218,

§ 26, to expand the concurrent jurisdiction of the District and

Boston Municipal Courts to include cases involving intimidation

of anyone other than jurors or witnesses.    Of course, it may do

so.   Perhaps the majority thinks the Legislature should already

have done so.   But it has not done so, and, unless it violates

the State or Federal Constitution -- which this limitation

obviously does not -- it is not for us to ignore or amend

legislative language that clearly and correctly expresses the

intent of the Legislature.

      Today's majority is not the first to assert that it is not

"sensible" or "reasonable" to conclude that the Legislature

meant what it said.   But the language of the statute, confirmed

by the statutory history, leaves no doubt.   To the extent the

majority attempts to make the line drawn here seem so arbitrary

that it is "unreasonable to conclude" that this is what the

Legislature meant -- and in light of the structure of G. L.

c. 268, § 13B, at the time of adoption of the 1996 Act, there is

little to the majority's argument -- one need look no further

for refutation than the portion of G. L. c. 218, § 26, construed

in Della Jacova v. Widett, 355 Mass. 266 (1969).    The

Legislature decided in that portion of the statute that the
                                                                      7


District Court would be given concurrent jurisdiction with the

Superior Court over "forgery of a promissory note, or of an

order for money or other property," but not for forgery of

anything else prohibited by G. L. c. 267, § 1, including what

was at issue in Della Cova, forgery of an access slip to a safe

deposit box.    Id. at 273.    The line at issue in this case is no

less "sensible" or "reason[able]" than the line drawn there.

     In the end, apparently recognizing that the trial judge in

fact correctly employed the "literal reading" of the statutory

text, the majority concludes that the Legislature's line drawing

here is so "intolerable" that we should depart from what the

statute says.    Ante at      .

     Whatever our power, if any, under Supreme Judicial Court

precedent to ignore plain statutory language that was

deliberately enacted and that does not violate the State or

Federal Constitution, I simply cannot agree that a difference of

opinion whether a subset of one crime over which the Superior

Court has jurisdiction may also be heard in the District and

Boston Municipal Courts warrants its exercise.     Since the trial

judge correctly construed the statute, I would affirm her order

of dismissal.3,4


     3
       The majority correctly holds that the practical concerns
it raises cannot trump the language of the statute.
Nonetheless, it is worth noting that there is some reason to
question the majority's assertion that properly reading the
                                                                   8




statute will open the floodgates of collateral attack. While
the record contains no information about the frequency of
prosecution in the District or Boston Municipal Courts of cases
of intimidation under G. L. c. 268, § 13B, where the victim was
not a juror or witness, there appears to be only a single
reported appellate decision since the expansion of § 13B in 2006
which involved such a prosecution. The only reported appellate
decision for a prosecution for intimidation of anyone other than
a witness or a juror under the version of § 13B in place for the
decade between the amendment of G. L. c. 218, § 26, in 1996 and
the expansion of G. L. c. 268, § 13B, in 2006, was tried in the
Superior Court. Commonwealth v. King, 69 Mass. App. Ct. 113
(2007).
    4
       The defendant also argues that there is an error in the
docket sheet and mittimus with respect to his sentence on count
2. On count 1, which, as described, was dismissed, the
defendant was sentenced to two years in the house of correction
one year to serve, the balance suspended until April 24, 2019.
On count 2, he was sentenced to two years in the house of
correction from and after count 1, suspended until April 24,
2019. The docket sheet and the mittimus, however, both state
that on count 2 he has been sentenced to two years in the house
of correction committed.

     After dismissing count 1, the clerk read the following
sentence into the record: "The Court has vacated without
prejudice your finding of guilty as to Count 1 and the sentence
thereafter of two years, one to serve, the balance suspended
until April 24th, 2019. And Counts 2, 3 and 4 stand as imposed
on April 30th. Count 2 is two years in the house of correction,
sentence is suspended until April 24th of 2019. Count 3 is six
months in the house of corrections suspended until April 24th of
2019 from and after Count 2. And Count 4 is committed to the
house of corrections, six months, sentence suspended to from and
after Count 3." The judge responded, "Thank you. All set."
After a discussion between the judge and the clerk about the
mittimus, the judge confirmed, "There's no change in the
sentence except that . . . Count 1 was vacated."

     In light of this, the Commonwealth correctly concedes that
the docket sheet and mittimus must be amended to reflect that
the defendant's two-year sentence on count 2 should have
remained a suspended sentence. I read the majority's remand
order to require this.
