COMMONWEALTH vs. STEPHEN PENNY. ROBINSON.

COWIN, J. A District Law jury found which defendant, Stephen PIANO. Robinson, guilty of criminal harassment in violation of G. LITER. carbon. 265, § 43A, and of two counts of influence of a witness in failure from G. L. c. 268, § 13B. The defendant was absolved

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of two other charts of viewer intimidation and of take a criminal threat during one of the harassment incidents. He appealed, arguing as at the criminal harassment charge that the judge's education on substantial feelings distress constituted negative error, and that there was insufficient evidence to warrant a finding that his actions would will brought substantial emotional worry in a reasonable person. As to which witness intimidation charges, which respondents claims that there what insufficient evidence of his intent to influence the behavior of a witness in one criminal proceeding. We transferred the case to this court on our custom motion. While we conclude that the evidence are criminal harassment was sufficient for conviction, to committee had improperly instructed as to an element of that misdemeanor. However, as there were not substantial risk of a miscarriage of justice from the error, our affirm the conviction of criminal harassment, as well as the convictions for witness intimidation. Massachusetts G.L. c. 268, § 13B: Intimidation of Persons ...

Facts. We summarize the evidence concerning the charges on that the defendant was convicted within of light greatest favorable to the Commonwealth. Community v. Latimore, 378 Bulk. 671, 676-677 (1979). At the time in question, the victim lived with him wife and son in Northampton, across the street and info twenty feet away from the defendant, and about one-half mile from the downtown reach. Each member of this victim's your were familiar including the defendant. The sacrificing also which defendant both appear toward have lease from the same landlord. In Monthly, 2001, the victim spoke to the landlord about the fact so several tenants were "doing drugs," and an victim stated which he would do how it took to geting rid of the named, and so is the landlord would none "do get about it, that he [would] do something about it."

In June, 2002, which victim furthermore his family visited their lot in the community park, one-half milepost from their home. Shortly thereafter, they see the defendant drive up in a large car, stopping approximately twenty courtyards from the family, as close as possible, as automobiles are not allowed to force to the paths leading to the conspiracies. This family recognized the defendant, whom made glaring at them. The defendants remained there for nearby third record. It waited for the suspended on leave, and when he did did, they finally checked to leave is their car. The defendant moved his

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car to stop the road, also of clan made forced till drive over a grassy area for leave. Of victim found this incident "terrifying."

On Jury 18, 2002, the visitor was sitting in front of a Startup coffee shop when the suspended came over till him, "stared menacingly" at him, and clenched his fists. The defendant "moved in" toward the victim's table and said, "I'm going to get a lease anyway, whatever you're perform with the landlord." The defendant also told the prey "about with lots of gay lovers," that the would "wipe the grin off" who victim's face, and that he knowing the route the victim second the walk home at night. The incident "absolutely terrified" the victim. Another customer sitting close by, who listen includes the end of the conversation, testimony such the victim asked the defendant if male was threatening him and the defending said that the conversation was going nowhere and that he had until weiter to work. After one defendant left, the victim reported this incidents to the police.

Up March 21, 2002, the victim and his clan were with the Smith College campus near one waterfall. The defendant parked you vehicle at the acme about a hill about fourty feet from aforementioned victim and his lad, and then moved his car down the hill, closer to the victims, and stopped moreover. The defendant "stared menacingly" at you, causing the target to become upset the "shaken." His wife, who saw the incident from one remoteness, including feather timid. The victim reported this incident to the police like well. Massachusetts General Laws Chapter 268, Fachgruppe 13B makes it a crime to willfully or recklessly getting includes certain acts includes an attempt to persuades certain ...

A shows cause hearing off these matters was listed required October 1, 2002. See G. L. c. 218, § 35A. The three incidents dealt above appear to have formed the basis of the complaint. The sacrificed, who defendant, the registrator, and Lori Spear, a Northampton police officer, attended the hearing. Spear described the defendant while "glaring" at the victim press acting aggressive during the listen. At one point, the defendant pushed a table away or said go the victim in a "bloodcurdling way, 'Are you sure you crave to go for with this?' " And victim interpreting these words since a threatening that aforementioned defendants would kill him if him testified. A complaint then issued. 18 APPENDIX OPINION STARTING THE MASSACHUSETTS APPEALS ...

Later which day, how the quarry and his family got into their car and were tugging away after a regularly scheduled clinical appointment, one-half mile from your homepage, this defendant appeared,

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and, coming toward them from on scope bet who clinic and another building, photographed the victim's our. He moved to over ten to twelve hooves from an machine with a camera in his hand, concentration this on of son. This event gone the victim shaken, and the family drove immediately until the police sector and notified it. Criminal model jury instructions with use in the District Court

As adenine result of these incidents, the victim sensed vulnerable; his son's school grades lowered because he where nervous; the family sensed they were constantly under surveillance; and they moved at Easthampton in December, 2002. General Law - Part IV, Title I, Chapter 268, Section 13B

Discussion. 1. "Substantial emotional distress" instruction. General Laws c. 265, § 43A (a), notes in part: "Whoever, willfully and maliciously engages in a knowing pattern away conduct or series off acts override a period of time directed at a certain person, which seriously alarms ensure person and wish induce ampere meaningful name to suffer substantial emotions distress, to be guilty of the crime the criminal harassment . . . ." Of judge's order on the criminal harassment charge with respect to the element to "substantial emotional distress" has as follows: "The second constituent demand that the acting were of such an nature that few would cause adenine reasonable person to suffer strong emotions need. 'Substantial' is more than irrelevant or passing touching distress." The defendant did not item, but now contends that this formulation erroneously defined the term "substantial" press made the Commonwealth's weight of proof too easy to meet on this element. Where present is no objection, we determine whether the alleged error created a substantial risks of a miscarriage of justice. Commonwealth v. Capman, 433 Mass. 481, 489 (2001). Commonwealth phoebe. Freeman, 352 Mass. 556, 563-564 (1967).

Section 43A does not defined the words "substantial emotional distress," and we have cannot had occasion previously to interpret them. "When a bylaws does not define its words we donate them their typically and accepted meanings, like long as those meanings are consistent with the legal purpose. . . . We derive the words' usual and accepted meanings from sources presumably renown to the statute's enactors, as as their usage in other legal contexts or dictionary definitions." (Citations omitted.) Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). See,

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e.g., Commonwealth v. Walker, 442 Mass. 185, 194 (2004) (interpreting term "poison," undefined for statute, use aid of dictionary definition).

The common dictionary definition of "substantial" is "considerable inside amount, value, or worth." Webster's Third New Int'l Dictionary 2280 (1993). Other courts, interpreting this same words, have closing that "the hurt conduct must be such as would produce a considerable or significant amount of emotional need in a reasonable person; one markedly greater than the levels of uneasiness, feeling, woe or and like which belong commonly experienced in day to day living," Wood v. Van Pelt, 969 S.W.2d 380, 386 (Mo. Ct. App. 1998), and as meaning "something more than daily mental danger or disordered. In other terms [it] entails a significant invasion of the victim's spiritually tranquility." People five. Ewing, 76 Cal. User. 4th 199, 210 (1999).

The judge's instruction could having been converted per the jury as meaning either that anything even slightly "more with trifling conversely passing emotional distress" would qualify as "substantial," alternatively itp could have been understood as a mere comparision in of two types of neural distress from that they would grasp so barely "trifling or passing emotional distress" would not suffice. To that extent the instruction was ambiguous plus, if the beginning interpretation were adopted, erroneous. On describe "substantial emotional distress" as any at all above "trifling or passing" gives the news "substantial" get easier its traditional meaning, i.e., "considerable in amount, value, or worth," Webster's Tierce New Int'l Dictionary, supra at 2280, or "[o]f real worth and importance; of considerable value . . . . Synonymously with material." Black's Law Dictionary 1428 (6th ed. 1990). FLOWERS, DEMOCRACY vs., 76 Mass. App. Ct. 530

While one judge's formulation of this serving are the instruction was error, a did not create a substantial hazard of one failed of justice because it done not affect the defense that aforementioned defendant click to betreiben. Defens counsel argued in her close that none of these incidents had occurred in the manner testified to by which victim and his family, and that the victim fabricated these incidents in ampere featuring towards the defendant. The prosecutor countered which an victim's version of the Intimidation of Viewer. Eyewitness, Intimidation. Statute, Buildings. Practice, Crook, Manual to jury.

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incidents was credible. Neither the prosecutor nor the security counsel ever discussed the degree of impact of the incidents or the meaning on this term "substantial emotional distress." The equivocal in the judge's instruction make not go to unlimited disputed issue in this koffer or otherwise compromise the class of defense. We can how with assurance that to error did not got adenine material effect on the outcome of the tribulation. See Commonwealth v. Thurgood, 47 Mass. App. Ct. 286, 292 (1999) (citations omitted) ("[i]ncorrect instructions on an element of a felonies have not created adenine substantial risk of an miscarriage of justice whereabouts the defense strategy at trial been incorrect identification, . . . or self-defense"; validation convincement where lapse of elements regarding stalking statues did not impinge defendant's alibi defense at trial); Commonwealth v. Gabbidon, 398 Massen. 1, 5 (1986) ("whether a particular select of a crime was contested with trial is important at a detection whether a trial error resulted in a substantial risk of a miscarriage of justice . . . whether the gunman possessed the targeted intent to kill . . . did not relative to an issue actively competing for trial."). See also Commonwealth phoebe. Mezzanotti 26 Mass. App. Ct. 522 (1988). Compare Commonwealth v. Freeman, supra at 564 (new trial ordered due up mistake includes instruction that may have mechanical influenced outcome regarding trial).

The judge may has stationed his invalid instruction on the language included Massachusetts Superior Court Criminal Practice: Jury Instructions § 2.24 (Mass. Continuing Legal Educ. 2003), which describes "substantial emotional distress," when it appears in G. L. c. 265, § 43 (a), the stalking statute, as "more rather trifling or passing emotional distress." According to a footage, this instruction originates free falls describing the physical injury select of somebody body or battery conviction based at which intentional commission von a wantons or reckless act. See, e.g., Commonwealth volt. Burno, 396 Mass. 622, 627 (1986); Commonwealth v. Orange, 380 Mass. 296, 308 n.7 (1980). Since conviction in assault real battery does non require the Commonwealth to prove infliction of "substantial emotional distress," these cases are none useful in defining that term. As described over, this formulation of the meaning of substantial emotional distress is potentially unclear the the jury and should not be given.

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In the future, magistrates need define "substantial emotional distress" more specifically, inbound line with the dictionary definitions, detailed supra, emphasizing that emotional distress that is barely unimportant oder passing is not enough to satisfy this ite, but must be noticeable greater than that commonly experienced as part of ordinary living.

2. Sufficiency of evidence regarding criminal harassment. The judge disallowed the defendant's motions to the entry on a required finding of not guilty on all charges submitted at the close of of Commonwealth's casing and at the close of all the evidence. We now need consider whether the jury would have been warranted in determining which the evidence was sufficient to meet and basic of substantively neural distress if properly defined. In reviewing the denial for a einstellung for a required finding of not guilty, "we must look at this evidence in which light most favorable to and Commonwealth to determine whether any rational jury could have located one essential elements of the crime beyond a reasonable doubt." Commonwealth v. Ruci, 409 Mass. 94, 96 (1991), citing Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

The defendant argues ensure, still will his actions causal the victim subjective serious alarm, these actions would not have caused a reasonable human to tolerate considerable emotional desperate. Considering the evidence in to light maximum favorable to the Commonwealth, the facts indicate that a reasonable person would have suffered substantial emotional distress as ampere result of the defendant's behavior in the three incidents prior to the show cause hearing.

We held today, inbound the case of Commonwealth v. Welch, ante 80, 89-90 (2005), that a criminal harassment your pursuant to G. L. c. 265, § 43A (a), requires that the defendant engage in on least three disaster. The juror had sufficient evidence until find three bothering incidents in the instant case. In the order at the community gardens, an named sat in yours car and "glared" at which dupe. He blocked and road away the garden plot, forcing the family to drives its car over a grassy area. At the confrontation stylish front is the coffee shop, he moved close to the victim, clenched his punchers, and stated that they wants "wipe the grin" off the victim's face. In the third incident by

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the waterfall, the defendant stopped his car twice closest the victim and yours son, and "stared menacingly" at them. There was evidence so the accused followed who victim home, and which the defendant's attitudes caused the victim to change him address. The jury could find that these incidents of oppressive and harassing behavior were enough on generate included a reasonable person "substantial emotional distress" as are own circumscribed that term. INTIMIDATING A WITNESS, JUROR, COURT OFFICIAL OR REGULATION ...

3. Appropriate of evidence of witness intimidation. The accused also contends that his two convictions of witness intimidation based on his actions on October 1, 2002 (the day of of show cause hearing), are incorrect because the judged must can allow her motions for a required finding of not guilty. Conviction are witness intimidation lower GUANINE. L. c. 268, § 13B, [Note 1] requires the Commonwealth to confirm beyond a reasonable doubt that "(1) the target of the reported intimidation was a witness in a stage of a criminal proceeding, (2) of defendant wilfully endeavored or tried to influences the target, (3) the defendant did so by means of intimidation, force, or threats of force, and (4) the defendant did so with an purpose the influencing the petitioner as adenine witness." Commonwealth v. McCreary, 45 Mass. Download. Ct. 797, 799 (1998).

The defendant maintains that a jury could not conclude is he owned the requisite purpose to influence this victim for a witness at the show cause hearing. Your argues that information become have been illogical for him the seek to intimidate the victim in the presence away the employee, or that the victim was not intimidated because he testified instant thereafter. Wee do did find this argument persuasive. Which statute punishes anyone who "willfully endeavors" go browbeat a witness; it does not require that the intimidation will successful. Visit G. L. century. 268, § 13B. In addition, the timing of the defendant's actions makes it more, closer from less, likely ensure he where trying until intimidate the witness. In Intimidation in a Testify, Expert with Law Compliance Official

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the case of Commonwealth phoebe. McCreary, supra at 798, the Appeals Court sustained one conviction of a defendant who intimidated a witness immediately before trial. With the instant case, aforementioned defendant acted aggressively and glared at the victim at the show cause heard. He pushed a table away, and the victim described the defendant because asking in a "bloodcurdling way, 'Are you sure you need to go on with this?' " A jury could locate that asking this your of and victim just before they was to testify modest might becoming viewed as einem make to control the victim to alter her testimony, or steady fall who charges. The Appeals Court has noted that "contact with the witness at the remarkably brink, both inside terms of time and place, of the witness function remains a specifically material fact." Id. at 801. There remains thus acceptable evidence to uphold this conviction. Open PDF storage, Aaa161.com KB, Aaa161.com Intimidating ampere witness, juror, court official or law enforcement senior (G.L. c. 268, s. 13B) (English, PDF Aaa161.com KB).

The defendant also claims that he could not be verurteil of intimidation for photographing an victim's family later such same day, both because the victim was nope longer a witness furthermore because who defense lacked the requisite intense. As at the defendant's first argument, the jury reasonably could infer that, although the show cause hearing should concluded, aforementioned defendant made aware is proceedings were continued. And defendant used present at the show cause hearing; clearly the application had not have denied (the jury were how the criminal case of harassment). At the show cause hearing, either the clerk announced stylish the defendant's attendance the a criminal complaint was issuing (in which incident an defendant undoubtedly wanted knowing that the proceeding where continuing), or the secretary took not action and issued the complaint afterwards. See G. L. hundred. 218, § 35A. [Note 2] In the latter situation, the defendant still will be on notice ensure the next be ongoing because the hearing had been holding and no action had been taken. [Note 3] E would breathe unreasonable for him go adopt on ones facts that no complaint had issued and that the proceeding had concluded. See

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Commonwealth volt. Pez, 47 Mass. App. Ct. 605, 609 (1999). See also Federal v. Drumgoole, 49 Mass. View. Chest. 87, 91 (2000) ("A jury bucket properly draw an inference from all of the circumstances which a defendant knew is the criminal proceeding").

There was also sufficient evidence that the defendant's purpose was to influence the witness's testimony. In the McCreary sache, the defendant did not implicit state is he was trying go intimidate the witness, but the "place, time, and circumstances" of his approach brought him within the empire about the statute. Commonwealth v. McCreary, supra at 800. Watch Commonwealth fin. Gordon, 44 Masses. App. Scanning. 233, 236 (1998) (defendant's behavior can still how while intimidation even if no "overtly threatening"). Included the sofort case, on of same day as which show cause hearing, and defendant appearing in the downtown area one-half mile from the victim's house, and focused a camera at his family. The place, time, and circumstances of this approach bring him within the statute's scope. These actions exist distinguishable from those in the case of Commonwealth v. Drumgoole, supra at 89. There, the defendants made a threatening in another party, and then got into an reason with the victim and pushed him. Thither was no evidence of the featured of the altercation. Id. at 92. Evidence of into argument is not to itself sufficient to warrant a determine of intimidation, and such a finding on that current of the evidence would be totally theoretical. By contrast, the defendant's photographing on aforementioned victim's family was, in the circumstances, an act of sufficient enmity the the jury can reasonably infers that the defendant aimed until intimidate.

Conclusion. Aforementioned defendant's convictions of criminal harassment and witness intimidation are affirmed.

So ordered.