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16-P-309                                             Appeals Court

              COMMONWEALTH   vs.   MATTHEW G. ALDEN, JR.


                             No. 16-P-309.

           Middlesex.      March 8, 2018. - June 21, 2018.

            Present:    Green, C.J., Kinder, & Henry, JJ.


Intimidation of Witness. Witness, Intimidation. Evidence,
     Authentication, Best and secondary, Cross-
     examination. Cellular Telephone. Practice, Criminal,
     Cross-examination by prosecutor, Instructions to jury,
     Required finding.



     Complaint received and sworn to in the Marlborough Division
of the District Court Department on January 20, 2015.

     The case was tried before Michael L. Fabbri, J.


     Luke Rosseel for the defendant.
     Erin D. Knight, Assistant District Attorney, for the
Commonwealth.


     KINDER, J.   Following a jury trial in the District Court,

the defendant, Matthew G. Alden, Jr., was convicted of

intimidating a witness by sending her threatening text messages

in violation of G. L. c. 268, § 13B.     On appeal, the defendant
                                                                    2


claims (1) evidence regarding the text messages was improperly

admitted, (2) the judge incorrectly instructed the jury

regarding the Commonwealth's burden of proof, and (3) the

evidence was not sufficient to prove the defendant's guilt

beyond a reasonable doubt.    We affirm.

     Background.   We summarize the facts the jury could have

found, viewing the evidence in the light most favorable to the

Commonwealth.   See Commonwealth v. Latimore, 378 Mass. 671, 676-

677 (1979).   The victim in the case, E.B., was the defendant's

former girl friend.    At the time of trial, she had known the

defendant for at least five years.    In January, 2015, there was

a criminal case pending against the defendant, in which E.B. was

a potential witness.    On January 19, 2015, E.B. reported to the

police that she was receiving threatening text messages from

someone she believed to be the defendant.    The messages were

received from the telephone number E.B. had used to communicate

with the defendant by text messages and telephone calls every

few days for over one year.

     The messages threatened that, if E.B. "went to court[, she

would] be sorry[,] and that [the defendant] would have people

come after [her] if [she] went to court."    More specifically,

"[o]ne of [the messages] told [E.B.] to keep her hoe ass mouth

shut.   [Another] implied that she should kill herself and she

should do it tonight."    An additional text message stated that
                                                                        3


E.B. should "leave their personal stuff out of the courtroom and

that if she opened her mouth it'd be the worst thing she tried

to do -- . . . or the biggest mistake she ever made."      E.B.

believed the text messages referred to her role as a witness in

the criminal case then pending against the defendant.

     The defendant testified that at the time the threatening

messages were received by E.B., he and his new girl friend had

been living with his aunt for "[a] couple of months."      The

defendant and his mother testified that the cellular telephone

(cell phone) associated with the number from which the

threatening messages were received was not owned by the

defendant.   According to the defendant, his aunt had purchased

the cell phone, but it was shared with the defendant and at

least six other people who lived at his aunt's residence. 1       The

cell phone was not password protected and remained at the aunt's

house for use by its residents.     The defendant denied sending

the threatening text messages to E.B.     He testified that, at the

time the text messages were sent, he was at the mall and did not

have the cell phone with him.     Finally, the defendant testified

that his new girl friend did not like E.B.

     Discussion.    1.   Evidentiary issues.   a.   Authentication of

text messages.     "[B]efore admitting an electronic communication


     1 The defendant testified that his aunt, her husband, his
two cousins, and their girl friends also lived at the residence.
                                                                   4


in evidence, a judge must determine whether sufficient evidence

exists 'for a reasonable jury to find by a preponderance of the

evidence that the defendant authored' the

communication."    Commonwealth v. Oppenheim, 86 Mass. App. Ct.
359, 366 (2014), quoting from Commonwealth v. Purdy, 459 Mass.
442, 447 (2011).   "[I]rrespective of whether the communication

is introduced through testimony or a physical item of evidence,"

proponents seeking to introduce such electronic communications

into evidence must first establish authenticity.    Commonwealth

v. Connolly, 91 Mass. App. Ct. 580, 587 (2017).

     Here, the defendant filed a motion in limine to preclude

evidence of the text messages because they were not "properly

authenticated" -- that is, because the evidence was not

sufficient to authenticate them as having been authored by him.

The judge deferred ruling until trial, but ultimately concluded

that the Commonwealth had established by a preponderance of the

evidence that the text messages were authentic.    We discern no

error in that decision.

     "A judge making a determination concerning the authenticity

of a communication sought to be introduced in evidence may look

to 'confirming circumstances' that would allow a reasonable jury

to conclude that this evidence is what its proponent claims it

to be."   Purdy, supra at 448-449, citing Commonwealth

v. Hartford, 346 Mass. 482, 488 (1963).   Here, there was
                                                                    5


evidence that, for over one year, E.B. had contacted the

defendant multiple times each week using the telephone number

from which the threatening messages originated.   When she called

that number, the defendant answered.   When she sent a text

message to that number to arrange a meeting with the defendant,

he appeared.   From this pattern of conduct, the judge could

reasonably infer a direct connection between the defendant and

the telephone number from which the threatening messages were

sent.   See Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 672

(2011) ("Fatal to the defendant were the actions he took in

conformity with the information contained in [the messages]").

     The content of the text messages reinforced their link to

the defendant.   It is undisputed that at the time she received

the text messages, E.B. was a witness in a pending case against

the defendant.   In this context, where there was evidence that

the text messages directed her to "keep her hoe ass mouth shut"

and "leave their personal stuff out of the courtroom" or "people

[would] come after [her] if [she] went to court," it was

reasonable to infer that the defendant was responsible for

sending the messages.

     The defendant's reliance on Commonwealth v. Williams, 456
Mass. 857 (2010), and Commonwealth v. Salyer, 84 Mass. App. Ct.
346 (2013), is misplaced.   In those cases, electronic

communications sent on the social networking Web site MySpace
                                                                      6


were not properly authenticated.    In Salyer, the Commonwealth

failed to introduce admissible evidence establishing any

connection between the offending pages and message on MySpace

and the defendant.    Salyer, supra at 355-356.    In Williams,

where the messages were alleged to have been sent by the

defendant's brother, the Supreme Judicial Court emphasized that

there was no evidence regarding any limitation on access to a

MySpace account, and no circumstances beyond the messages'

content that linked them to the defendant's

brother.    Williams, supra at 868-869.   The Supreme Judicial

Court explained that "[a]nalogizing a My[S]pace Web page to a

telephone call, a witness's testimony that he or she has

received an incoming call from a person claiming to be 'A,'

without more, is insufficient evidence to admit the call as a

conversation with 'A.'"    Id. at 869.    Here, by contrast, there

was more.    In addition to the content of the text messages,

E.B.'s prior relationship with the defendant and her use of the

telephone number to communicate with him over a significant

period of time provided the necessary link.     Simply put, these

confirming circumstances sufficiently connected the defendant to

the threats.    See Purdy, 459 Mass. at 450-451.

     b.    Best evidence rule.   The defendant claims that the best

evidence rule precluded testimony regarding the content of the

text messages.    Because the defendant never raised this argument
                                                                        7


at trial, we review any error for a substantial risk of a

miscarriage of justice.       See Commonwealth v. Leary, 92 Mass.

App. Ct. 332, 336 (2017).       "The best evidence rule provides

that, where the contents of a document are to be proved, the

party must either produce the original or show a sufficient

excuse for its nonproduction."       Commonwealth v. Ocasio, 434
Mass. 1, 6 (2001).       There is an exception, however, regarding

statements of parties.       "The proponent may prove the content of

a written statement of the party against whom the evidence is

offered without producing or accounting for the original."

Mass. G. Evid. § 1007 (2018).       Here, once the judge made a

preliminary determination that the evidence was sufficient to

authenticate that the text messages were sent by the defendant,

this exception applied.       Accordingly, the best evidence rule did

not.       There was no error, much less a substantial risk that

justice miscarried.

       c.    Cross-examination of the defendant.   At the close of

cross-examination of the defendant, the prosecutor posed to the

defendant a series of ten questions, each asking whether the

defendant had sent a particular text message.       Each question

incorporated the exact language of the text message. 2     In each

instance, the defendant denied sending the text message.       On


       2
       For example, the prosecutor asked, "[D]o you deny saying,
'I hope you kill yourself, bye-bye?'"
                                                                    8


appeal, the defendant claims that this line of cross-examination

improperly relied on facts not in evidence.   We are not

persuaded.

     Generally, "[a] prosecutor may not conduct cross-

examination 'in bad faith or without foundation.'"   Commonwealth

v. Christian, 430 Mass. 552, 561 (2000), quoting

from Commonwealth v. White, 367 Mass. 280, 285 (1975).     Here,

although some of the questions included text messages not

previously described by E.B., the Commonwealth had a "reasonable

belief that the facts implied by the questions could be

established by admissible evidence."   Commonwealth v. Peck, 86
Mass. App. Ct. 34, 39 (2014).   The jury had already heard the

general nature of the threatening text messages through the

testimony of E.B. and a police witness.   Moreover, "screen

shot[s]" of the text messages had been preserved and made

available to the defendant.   Although the screen shots

themselves were never offered in evidence, the prosecutor was

aware, prior to the defendant's testimony, that the judge had

found "by a preponderance of the evidence that those text

messages are authentic, even though they weren't presented in

the form of photographs or business records."   Therefore, the

prosecutor had a good faith belief that the threats implied by

the questions could be established by admissible evidence.

Accordingly, the judge did not abuse his discretion in allowing
                                                                     9


the cross-examination.    See Commonwealth v. Durand, 475 Mass.
657, 662 (2016). 3

     2.    Instruction.   In addition to the general instruction

that the Commonwealth had the burden of proving each element of

the offense beyond a reasonable doubt, the judge gave a

supplemental instruction that, before they could consider the

content of the text messages, the jury must be satisfied by a

preponderance of the evidence that the messages had been sent by

the defendant. 4   The defendant claims that the supplemental

instruction was reversible error because it confused the jury

regarding the Commonwealth's burden of proof.    We disagree.




     3 The defendant's remaining claims regarding the
prosecutor's examination of witnesses "have not been overlooked.
We find nothing in them that requires discussion." Commonwealth
v. Domanski, 332 Mass. 66, 78 (1954).

     4   The judge instructed the jurors on this point as follows:

     "Before you can consider the content of those alleged text
     messages you must first be persuaded that the person on the
     other side of the conversation was, in fact, the defendant.
     The prosecution has to prove what is called by a
     preponderance of the evidence. It's a different standard,
     lower than the beyond a reasonable doubt standard.
     Preponderance of the evidence mean[s] that the evidence
     must convince you that it is more likely true than not that
     the person on the other end of the conversation was, in
     fact, the defendant. If you are not convinced that it is
     more likely true than not that the other person on the
     alleged conversation was, in fact, the defendant then you
     may not consider that conversation, in this case text
     messages as alleged, you may not consider that conversation
     at all against the defendant."
                                                                   10


     "We review objections to jury instructions to determine if

there was any error, and, if so, whether the error affected the

substantial rights of the objecting party."    Beverly v. Bass

River Golf Mgmt., 92 Mass. App. Ct. 595, 603 (2018) (quotation

omitted).    Because the Commonwealth sought to introduce evidence

of the contents of text messages, an instruction on a

preliminary determination of authorship was appropriate, and the

instruction given was an accurate statement of the law.

See Purdy, 459 Mass. at 447-450; Oppenheim, 86 Mass. App. Ct. at

363-369.    The judge also properly instructed the jury on the

elements of the crime, including that the Commonwealth had the

burden to prove beyond a reasonable doubt that it was the

defendant who directly or indirectly threatened the victim. 5

Three times the judge emphasized that the Commonwealth's burden

was to prove each element of the crime beyond a reasonable

doubt.

     "Trial judges have 'considerable discretion in framing jury

instructions, both in determining the precise phraseology used

and the appropriate degree of elaboration.'"    Commonwealth

v. Kelly, 470 Mass. 682, 688 (2015) (quotation omitted).    We

acknowledge that in this case there was a fine line between the

     5 The judge instructed:    "In order to prove the defendant
guilty . . . the Commonwealth   must prove three . . . elements
beyond a reasonable doubt . .   . . First, that the defendant
either directly or indirectly   made a threat" (emphasis
supplied).
                                                                   11


(1) preliminary determination of the authenticity of the text

messages and (2) proof of the defendant's identity as the

perpetrator of the threats.    Nevertheless, authenticity and

identity are different legal concepts, and the judge did not err

in explaining the distinction.    While, in the context of this

case, it would have been preferable to instruct the jury more

directly that authorship of the threatening text messages was an

element of the offense that had to be proved beyond a reasonable

doubt, the judge acted within his discretion in framing the

instructions as he did.    Moreover, the judge gave a curative

instruction after the defendant objected. 6   Considering these

instructions as a whole, see Commonwealth v. Allen, 474 Mass.
162, 168 (2016), we are confident that the defendant's

substantive rights were not adversely affected by the

supplemental jury instruction.

     3.   Sufficiency.    "Where, as here, a defendant moves for

required findings at the close of the Commonwealth's case and at

the close of all the evidence, '[w]e [first] consider the state

of the evidence at the close of the Commonwealth's case to


     6 "Just so . . . I'm not confusing you, the preliminary
issue as to the admissibility of the text messages, the standard
is preponderance of the evidence. So you have to first
determine by a preponderance of the evidence, was the defendant
the person on the other side of the conversation. Only then can
you [consider] them in determining whether or not the government
has proven the elements of the offense beyond a reasonable
doubt."
                                                                    12


determine whether the defendant's motion should have been

granted at that time,'" Commonwealth v. Morgan, 449 Mass. 343,

349 (2007), quoting from Commonwealth v. Sheline, 391 Mass. 279,

283 (1984), that is, "whether the Commonwealth [had] presented

sufficient evidence of the defendant's guilt to submit the case

to the jury," Commonwealth v. Dustin, 476 Mass. 1003, 1003

(2016) (quotation omitted).    The evidence is sufficient if,

"viewing the evidence in a light most favorable to the

Commonwealth, 'any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt'

(emphasis original)."    Commonwealth v. Cohen (No. 1), 456 Mass.
94, 120 (2010), quoting from Latimore, 378 Mass. at 677.

     To establish a violation of G. L. c. 268, § 13B, "the

Commonwealth was required to prove that the defendant wilfully

engaged in intimidating conduct, that is, acts or words that

would instill fear in a reasonable person, and did so with the

intent to impede or influence a potential witness's testimony"

against the defendant.    Commonwealth v. Rivera, 76 Mass. App.

Ct. 530, 535 (2010).    The defendant does not dispute the

threatening nature of the messages or that they were intended to

impede or influence E.B., a potential witness in a criminal case

pending against him.    As to the sufficiency of the evidence, the

defendant's only claim is that no rational juror could have
                                                                   13


found beyond a reasonable doubt that he authored the text

messages.   We disagree.

     We have previously discussed the circumstantial evidence

linking the defendant to the threatening messages.    First, the

jury heard that there had been a long-standing pattern of

communication between the defendant and E.B. using the telephone

number from which the threats originated.    Second, the jury

could rationally conclude that the threats to "leave their

personal stuff out of the courtroom" or "people [would] come

after [her] if [she] went to court" were intended by the

defendant to intimidate E.B., so that she would not testify in

the case then pending against him.    Viewed in the light most

favorable to the prosecution, this evidence was sufficient to

prove the defendant's identity beyond a reasonable doubt.

      "We also consider the state of the evidence at the close

of all the evidence, to determine whether the Commonwealth's

position as to proof deteriorated after it closed its

case."   Sheline, supra.   However, "[d]eterioration does not

occur merely because the defendant contradicted the

Commonwealth's evidence . . . 'unless the contrary evidence is

so overwhelming that no rational jury could conclude that the

defendant was guilty.'"    Commonwealth v. Ross, 92 Mass. App. Ct.
377, 381 (2017) (citation omitted).    We do not view the

uncorroborated testimony of the defendant and his mother as
                                                                   14


overwhelming contrary evidence.   "As the jury were free to

disbelieve the defendant's account, there was nothing compelling

in this evidence which caused the prosecution's case to

deteriorate."   Commonwealth v. Walker, 401 Mass. 338, 343-344

(1987).   Accordingly, we discern no error in the judge's denial

of either of the defendant's motions for a required finding of

not guilty.

                                    Judgment affirmed.