Opinion
No. 12–P–1408.
2013-04-22
COMMONWEALTH v. Ivelisse RODRIGUEZ.
By the Court (BERRY, SIKORA & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial in Superior Court, the defendant was convicted of intimidating a parole officer, G.L. c. 268, § 13B. It is uncontested that the intimidating statements were transmitted to the parole officer through a third party, the defendant's neighbor. At issue is whether the defendant transmitted the relevant information to her neighbor with the wilful intent that the neighbor pass along the information to the intended target. See Commonwealth v. Perez, 460 Mass. 683, 703, 954 N.E.2d 1 (2011). Because we agree with the defendant that the evidence of that intention was insufficient as a matter of law, we reverse.
Background. The defendant stipulated that her husband had been having trouble with his parole officer regarding compliance with a condition of his parole. The defendant also stipulated that, using her position as an employee of Baystate Medical Center, she accessed the parole officer's confidential medical records on November 10, 2010. She scribbled information gleaned from this file on a three inch by five inch piece of yellow paper, commonly known as a “Post–It.” Specifically, she wrote down the parole officer's home address, date of birth, social security number, and private cellular telephone number. Also included on the paper were notes about a medical condition the parole officer had and a medical treatment he had received, as well as the last names of two of his doctors. The parole officer's name did not appear on the paper. The defendant acknowledged that she passed along the note to her husband in the hope that the information might somehow be useful to him in his dealings with the parole officer.
According to the defendant, the husband laughed when he received the information, told her, “[W]hat am I supposed to do with this?” and returned the Post–It to her, whereupon she placed it on a bookcase where she kept her papers. Eight days after the defendant improperly accessed the parole officer's medical records, the defendant's neighbor found the Post–It slipped under her door.
The defendant provided various explanations of what use she thought might be made of the information, ending with a statement that she thought the information might humanize the parole officer in her husband's eyes, thus improving their relationship. The judge, not surprisingly, appeared to place no credit in any such explanations.
Prominently displayed on the opposite side of the paper was a child-like picture drawn with a pen and what appears to be a pink highlighter. The defendant identified the drawing as having been done by her five year old daughter, and her principal defense was that the daughter must have used the Post–It as “scratch paper” for her drawing and then sent it to the neighbor by slipping it under the neighbor's door. According to the neighbor, the defendant's daughter had “drawn [her] stuff before,” although the daughter had not previously left such drawings around for her.
The defendant and the neighbor lived in the same building, with the defendant's family occupying the first floor, and the neighbor occupying the upper two floors. The paper had been slipped under a locked door to the upper floors from an internal common area. There was uncontested testimony that the defendant's daughter had access to the common area.
When the neighbor found the Post–It, she did not notice the drawing at first, but instead focused on the writing on the other side of it. She believed that the writing was likely related to harassing telephone calls that she had been receiving (unrelated to the defendant).
The neighbor testified that she had reported the calls to the police and was “trying to find out who was the person prank-calling [her] phone.” She “thought for some reason [the writing] was information leading to that,” and this caused her to call the telephone number included on the paper. She reached the parole officer, and they discussed the notes that had been made on the Post–It. After some initial confusion, the neighbor learned that the paper was unrelated to the harassing telephone calls she had been receiving, and the parole officer learned that the neighbor had somehow obtained confidential information related to him (something that understandably alarmed him). When the neighbor eventually spotted the drawing, her thought was that “maybe my neighbor's daughter drew it for me.”
There was a suggestion in the evidence that the calls were coming from the neighbor's sister's boyfriend.
After making immediate arrangements to retrieve the Post–It, the parole officer saw the child's drawing on one side of it, something he stated “kind of explained perhaps how the chain of events [led] to it coming into [the neighbor's] possession.” Because the parole officer recognized the neighbor's street address as the same as one of his parolees, he reported the matter to the police. A police investigation uncovered that the defendant had accessed the parole officer's medical records. The defendant eventually confessed to having done so, while denying that she had slipped the note under the neighbor's door.
In her closing argument, the prosecutor theorized that “knowing that the neighbor was upset about being harassed with harassing phone calls,” the defendant also knew that the neighbor “would do something with that [information] and make that telephone call” to the telephone number on the paper. In finding the defendant guilty, the judge accepted this theory. Specifically, the judge found that the defendant “knew [the neighbor] was undergoing an emotional and troublesome series of events ... [and therefore] knew that [the neighbor] was highly sensitive to harassment.” Based on this, the judge further found that the defendant would know that “[t]his anonymous note, if you will, containing this odd information, not connecting it to any individual would reasonably cause [the neighbor], in the position she was, to call that phone number.”
Discussion. Critical to the judge's guilty finding was her subsidiary finding that—when the Post–It was slipped under the neighbor's door—the defendant knew that the neighbor had been receiving harassing telephone calls and therefore likely would react as she did (calling an anonymous telephone number scribbled on a Post–It note). We agree with the defendant that this finding is unsupported by the record.
The Commonwealth put on no direct evidence that the defendant was aware of the harassment the neighbor had encountered. Nor could a reasonable inference to that effect be drawn from the Commonwealth's evidence.
The judge went so far as to state that the defendant had acknowledged that she knew the neighbor “would more than likely ... call that number to find out if it had anything to do with the harassment the neighbor was undergoing through an entirely separate set of facts.” The Commonwealth concedes that the defendant made no such acknowledgment.
Although the defendant testified that she eventually learned of the harassment, she was adamant that she learned this only after the neighbor had found the note (when the neighbor called her to explain what had happened). While the judge was, of course, free to disbelieve such testimony, disbelief in a defendant's denial that something happened does not constitute affirmative proof that it did. See Commonwealth v. Thomas, 439 Mass. 362, 367 & n. 6, 787 N.E.2d 1047 (2003).
The neighbor testified that she had lived in the same building as the defendant for approximately four years. She also testified that while they “had little neighbor spats,” these were “nothing serious,” and she described her relationship with the defendant as one of being “neighbors and friends.” We disagree with the suggestion the Commonwealth made at oral argument that this was sufficient to draw a reasonable inference that the defendant specifically knew of the harassment that the neighbor had encountered when the Post–It was slipped under the door.
The judge's finding that the defendant was aware that the neighbor had been receiving harassing telephone calls at the time the paper was slipped under the door is clearly erroneous.
Moreover, for purposes of determining the sufficiency of the Commonwealth's case, the defendant's testimony cannot be
considered.
Because the judge relied on an erroneous finding, the judgment must be reversed and the guilty finding set aside. The question remains whether there was sufficient evidence under a different theory, thus allowing the possibility of a retrial. Reading the evidence in the light most favorable to the Commonwealth, we conclude that the evidence was insufficient. To sustain a conviction under the theory put forward at trial, the Commonwealth had to prove, beyond a reasonable doubt, that the defendant “willfully ... intimidate [d] or harasse[d]” the parole officer with the intent to interfere with a criminal proceeding. The manner in which the relevant information made its way to the parole officer here was too full of happenstance to make out a case of wilful intimidation.
In the victim statement he delivered at sentencing, the victim himself recognized that, “The fact that I became aware of this was purely accidental.”
Compare Commonwealth v. Troy T., 54 Mass.App.Ct. 520, 527, 766 N.E.2d 519 (2002) (insufficient evidence of intent to communicate a threat where statement to friends was inadvertently overheard by third party who transmitted it to victim). Put differently, in light of the case the Commonwealth presented, a guilty finding would necessarily depend on leaps of conjecture forbidden by the law.
At trial, the Commonwealth alternatively maintained that the defendant violated the statute when she showed the information to her husband. However, although one prong of the statute allows a conviction for “attempting” to cause “emotional injury” (so long as this is done with the requisite intent), see G.L. c. 268, § 13B, the Commonwealth did not press an “attempt” theory below, and at oral argument, it disavowed relying on such a theory on appeal.
We need not reach the defendant's additional arguments.
Judgment reversed.
Finding set aside.
Judgment shall enter for the defendant.