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13-P-830                                                Appeals Court

                 COMMONWEALTH   vs.   GEOVANNI RUANO.


                             No. 13-P-830.

        Essex.        October 14, 2014. - February 18, 2015.

           Present:    Cypher, Grainger, & Maldonado, JJ.


Intimidation of Witness.     Witness, Intimidation.     Evidence,
     Intent. Intent.



     Indictment found and returned in the Superior Court
Department on May 25, 2011.

    The case was tried before Howard J. Whitehead, J.


     Patricia A. DeJuneas for the defendant.
     Catherine Langevin Semel, Assistant District Attorney, for
the Commonwealth.


    GRAINGER, J.      The defendant appeals from a conviction of

influencing a witness by intimidation, G. L. c. 268, § 13B, by a
                                                                     2


jury of the Superior Court.1   He asserts insufficiency of the

evidence on appeal.

     Factual background.   As relevant to the issue on appeal,

the jury could have found from the evidence introduced by the

Commonwealth2 that on July 31, 2010, the defendant and the

witness had an altercation.    While the underlying reason for the

altercation remains unclear from the record, the Commonwealth's

evidence was that the defendant entirely lost control of his

temper when he believed the witness's motor vehicle was blocking

his sport utility vehicle (SUV), that the defendant screamed

obscenities at the witness and informed the witness that he was

a police officer, and, finally, that the defendant shoved the

witness with his SUV until the witness was on the SUV's hood.

The jury found the defendant not guilty of all charges stemming

from the incident.

     The next day, and after the defendant ascertained that the

witness had reported the incident to police, the defendant's

girl friend, who lived across the street from the witness,

appeared at the witness's door and inquired whether the

defendant could come over to apologize.    The witness agreed, but

     1
       Other charges, including assault and battery and assault
and battery by means of a dangerous weapon, resulted in not
guilty verdicts.
     2
       We do not include the evidence introduced by the defendant
in our consideration of the sufficiency of the Commonwealth's
case.
                                                                     3


asked that the visit not take place for twenty minutes.        The

defendant waited for a period of time and then appeared with his

girl friend, whereupon they were invited by the witness into his

kitchen.   During the ensuing conversation the defendant and the

witness sat at opposite ends of the kitchen table.     In addition

to the defendant's girl friend, the witness's roommate was also

present.

     In that conversation, the defendant asked the witness to

recant and again mentioned that he was a police officer, this

time stating that he had been one for fifteen years.     The

witness testified that the defendant stated that his superiors

would "burn him," that he was in danger of losing his job and

his pension.   He also told the witness about his two daughters,

one of whom was in college.   In asking the witness to recant,

the defendant stated that the witness "could make 200 plus

friends and . . . could have the key to the city . . . and

everything could be good and if [he] got into trouble [he] could

get out of trouble."3   The witness testified that the defendant

did not apologize explicitly for his behavior of the night

before; however, according to the roommate the defendant

"apologized again and again" and also said he had had "a bad


     3
       The witness's roommate testified that he understood the
"200 new friends" to refer to the Lynn police department. It is
undisputed that there are approximately 200 police officers in
the Lynn police department.
                                                                    4


night and kind of overreacted."   The meeting ended with a "shake

of the hand."

     Later that same day the defendant and his girl friend

returned to the witness's home to "tie up loose ends" and to

"get the story straight."   The witness invited them into his

home for a second time,4 and the defendant coached him to say he

had been in an argument with his girl friend and that he was

just as responsible for the incident as the defendant, if not

more so.   The defendant also coached the witness how to answer

investigators' questions, e.g., with short, one-word answers.

The witness agreed to these requests, and the meeting ended with

the defendant saying he was "glad" they met again and "felt more

competent [sic]."   The second meeting was brief.   The witness

described the defendant as "in and out, to the point."

     The next day, the witness did in fact change his story when

he spoke with police on the telephone.5   The witness told the

police that he suffered from anxiety and that his medical state

had played a large role in the altercation.   This story,


     4
       The witness's roommate, who was again present, recollected
that this second meeting took place in the driveway, not inside
the house. The roommate testified that at this second meeting
the witness appeared to be "[s]till a little nervous but not as
nervous as the first conversation" and that the defendant seemed
"relieved."
     5
       The evidence suggests that this telephone conversation was
initiated by the police as a follow-up to their investigation of
the confrontation.
                                                                    5


according to the witness's testimony, was not the same story the

defendant had coached him to tell.    Thereafter, when officers

visited the witness at his home, the witness was reluctant to

speak with them and asked that they speak elsewhere.   Officers

testified that during this exchange they saw the defendant's SUV

parked at his girl friend's house in the driveway across the

street.   Once at the police station, the witness said his

original report was correct and recounted the meetings with the

defendant.

     Discussion.    A conviction under G. L. c. 268,

§ 13B(1)(c)(i), as amended through St. 2006, c. 48, § 3,

requires that the defendant "directly or indirectly, willfully

. . . misleads, intimidates or harasses another person who is

. . . a witness . . . at any stage of a criminal investigation."6

Intimidation requires "putting a person in fear for the purpose

of influencing his or her conduct."    Commonwealth v. McCreary,

45 Mass. App. Ct. 797, 799 (1998).    "[A]n 'action does not need

to be overtly threatening to fall within the meaning of

intimidation.'"    Commonwealth v. Cohen (No. 1), 456 Mass. 94,


     6
       Although the indictment tracks the statutory language
("misleads, intimidates or harasses"), the Commonwealth's case
was presented exclusively as involving either a promise of
something of value, see G. L. c. 268, § 13B(1)(b), or
intimidation. Thus the only issue on appeal is whether the
defendant's conduct supports a conviction of intimidation. It
is undisputed that this case involves "a witness . . . at any
stage of a criminal investigation."
                                                                     6


124 (2010), quoting from Commonwealth v. Casiano, 70 Mass. App.

Ct. 705, 708 (2007).    "The assessment whether the defendant made

a threat is not confined to a technical analysis of the precise

words uttered."    Commonwealth v. Sholley, 432 Mass. 721, 725

(2000), cert. denied, 532 U.S. 980 (2001).    Rather, "[a] fact

finder may evaluate the circumstances in which the statement was

made, including its timing, to determine whether the defendant

in fact intended to intimidate the victim."    Commonwealth v.

King, 69 Mass. App. Ct. 113, 120 (2007), citing Commonwealth v.

Robinson, 444 Mass. 102, 109 (2005).

     In reviewing the denial of a motion for a required finding

of not guilty,7 we "look at the evidence in the light most

favorable to the Commonwealth to determine whether any rational

jury could have found the essential elements of the crime beyond

a reasonable doubt."    Commonwealth v. Belle Isle, 44 Mass. App.

Ct. 226, 229 (1998), citing Commonwealth v. Latimore, 378 Mass.

671, 677 (1979).

     While the Commonwealth's evidence was more than sufficient

to support a conviction under G. L. c. 268 § 13B(1)(b)

("Whoever, directly or indirectly, willfully . . . conveys a

gift, offer or promise of anything of value"), the jury did not




     7
         The claim was properly preserved at trial.
                                                                    7


convict the defendant on that basis.8   The Commonwealth's theory

in support of a conviction under § 13B(1)(c) (intimidation or

threat) was that the offer of 200 new friends could be

interpreted as a simultaneous threat that these "new friends"

would necessarily become "new enemies" if the witness failed to

recant.   It is thus necessary to conclude that the defendant's

reference to "friends" allowed the jury, acting reasonably, to

infer that the evidence showed beyond a reasonable doubt that he

was simultaneously making an allusion to "enemies," couched in

the alternative.

     We do not disagree that there are cases in which such an

inference could be supported by evidence, including

circumstantial evidence.   Although we consider this to be a

close case, we conclude that evidence sufficient for the jury to

find intimidation beyond a reasonable doubt is lacking.   The

prosecutor presented testimony both from the witness and his

roommate, who was in attendance during the entirety of the

interactions between the defendant and the witness on the day


     8
       We do not infer anything from the jury's failure to check
the special question form's box labeled "offering something of
value" except a failure to convict on that basis. See
Commonwealth v. Carlino, 449 Mass. 71, 79-80 (2007) (jury's
failure to check a box on special verdict form may be deemed
neither a conviction nor an acquittal by "accident or
supposition" for purposes of double jeopardy). Our task is not
to surmise the jury's possible rationale, but rather to evaluate
whether the evidence was legally sufficient to support a
conviction of intimidation.
                                                                    8


following the confrontation.   The Commonwealth's witnesses,

however, presented no evidence of gestures, tone of voice, body

language or even physical proximity from which a rational fact

finder could infer that the words spoken by the defendant were

used, beyond a reasonable doubt, to connote their opposite and

thereby convey a threat.   The Commonwealth's evidence

demonstrated the following:    The defendant sent his girlfriend

to ask permission to visit the witness.    The defendant was asked

to wait for twenty minutes before arriving, which he did.      He

sat at the opposite end of the table from the witness.      His

references to his status as a police officer were made in

explicit reference to his own exposure to job-related

consequences, and not to consequences the witness would face

were he to refuse to cooperate with the defendant.    The

defendant explicitly attempted to humanize the impression he

made on the witness by referring to his daughters.

     The Commonwealth also argues that in addition to the

implication of "enemies" to be derived from the word "friends,"

the defendant's reference to serving in the gang unit at the

police force was evidence of intimidation.9   That reference, part

of a stream of unrelated remarks inserted between concern for

his pension and the fact that his daughters were in college, is

     9
       The witness testified that the defendant said that he was
a "fifteen year veteran, being on the Gang Unit," and asked the
witness to "keep it out of court."
                                                                   9


devoid of any suggestion that members of any gang or gangs were

available to do the defendant's bidding, and is insufficient

without additional context to support the Commonwealth's

interpretation beyond a reasonable doubt.

     Although the jury acquitted the defendant of all charges

stemming from the original confrontation on the preceding

evening, the Commonwealth also asserts that the jury could infer

witness intimidation from the evidence of the defendant's

previous aggressive behavior.   While the Commonwealth is

entitled to draw on that evidence notwithstanding the underlying

acquittals, in this case it does not support a conviction of

intimidation beyond a reasonable doubt, standing in stark

contrast to the Commonwealth's evidence of the defendant's

continuous portrayal of apprehension and regret10 on the day

following his single altercation with the witness.11


     10
       On cross-examination the Commonwealth's witness, the
roommate, testified that the defendant "apologized again and
again." Our cases do not specify whether testimony on cross-
examination of the Commonwealth's witness is considered part of
the Commonwealth's case-in-chief for purposes of a directed
verdict, or is only to be included in the calculus of adequacy
in a reappraisal of all the evidence after the defendant has
rested. See, e.g., Commonwealth v. Kelley, 370 Mass. 147, 150
n.1 (1976). Even, however, if we do not consider this portion
of the roommate's testimony at all, it leaves the record devoid
of any evidence supporting an inference of a threatening or
hostile demeanor.
     11
       Unlike Commonwealth v. Perez, 460 Mass. 683, 703-704
(2011), this is not a case in which the record contains a
history of abuse regularly inflicted by the defendant on the
                                                                  10


    "We have reviewed the entire record carefully on the law

and the facts."   Commonwealth v. Latimore, 378 Mass. at 679.

While the test of sufficiency encountered in our cases usually

involves a claimed lack of evidence available to be viewed "in

the light most favorable to the prosecution," this is a

different and less frequent circumstance in which the remaining

requirement of the Latimore test -- satisfying "a rational trier

of fact . . . beyond a reasonable doubt" -- has not been met.

Id. at 677-678.   Recent cases recognizing that Latimore

incorporates this condition include Commonwealth v. McCauliff,

461 Mass. 635 (2012).   The Supreme Judicial Court ruled in

McCauliff that conflicting inferences of equal likelihood

derived from evidence that the defendant made a false statement,

viewed under the Latimore standard, "do not provide proof beyond

a reasonable doubt" that the falsehoods were knowingly made.

Id. at 641.   This applies with equal force to the Commonwealth's

claim that the defendant's reference to "friends" was just as

likely intended to mean "enemies."   See id. at 642.

    In Commonwealth v. Lee, 460 Mass. 64 (2011), the Supreme

Judicial Court ruled that evidence of participation as a joint

venturer in an assault and battery, viewed in the light most

favorable to the Commonwealth "cannot bear the weight of proof



witness such that the witness could anticipate it would be
continued.
                                                                    11


beyond a reasonable doubt" to infer premeditated intent, even if

proven with respect to a codefendant.   Id. at 71, quoting from

Commonwealth v. Rodriguez, 456 Mass. 578, 583 (2010).     Another

recent case turning on this latter portion of the Latimore test

is Commonwealth v. Greene, 461 Mass. 1011 (2012). In Greene the

court reversed a conviction for trespass, citing Latimore,

because a police officer's hearsay testimony, albeit introduced

without objection, was insufficient to warrant a finding beyond

a reasonable doubt that the defendant had been ordered to vacate

property by a person with authority to do so.   Id. at 1012.    See

Commonwealth v. Oyewole, 470 Mass. 1015, 1016 (2014)

(defendant's presence at a hearing at which his driver's license

was suspended did not allow a jury to find he received notice of

the suspension beyond a reasonable doubt under Latimore).

    Finally, in Commonwealth v. Romero, 464 Mass. 648 (2013),

the Supreme Judicial Court reversed the defendant's conviction,

citing Latimore, where the Commonwealth's evidence, including

evidence that a firearm was in plain view and titled to the

defendant, failed to support constructive possession of a

firearm beyond a reasonable doubt as the evidence "shed little

light on the defendant's intent."   Id. at 652, 659.    As in

Romero, we conclude that on this record the Commonwealth's

evidence sheds insufficient light on the defendant's intent to

intimidate.
                                                                  12


    As stated, our task is to determine whether a rational

trier of fact can find the essential element of intimidation

beyond a reasonable doubt, even when all the evidence is viewed

in the light most favorable to the prosecution.   While a

rational trier of fact could certainly conclude beyond a

reasonable doubt that the defendant intended to influence the

witness's testimony, the Commonwealth's evidence did not allow

the jury to find beyond a reasonable doubt that he was speaking

in code, and intended to influence the testimony by

intimidation.

                                   Judgment reversed.

                                   Verdict set aside.

                                   Judgment shall enter for the
                                     defendant.
