Commonwealth v. Arickson Cruz.

• Court: Massachusetts Appeals Court
• Decided: January 30, 2024
• Docket: 23-P-0151
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-151

COMMONWEALTH

vs.

ARICKSON CRUZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted, after a jury trial, of

threatening to commit a crime, G. L. c. 275, § 2. In this

direct appeal from the judgment of conviction, he argues that

(1) prior bad act evidence in the form of text messages should

not have been admitted, and (2) there was insufficient evidence

to support the conviction because a different text message was

not a true threat, but rather a lawful expression to stay away

from his children. We affirm.

The jury could have found the following facts. See

Commonwealth v. James, 73 Mass. App. Ct. 383, 383 (2008). The

defendant and the victim dated for almost five years, during

which time they lived together. They separated in the spring of

2018, and the defendant moved out of their house. After the

separation, the pair did not have much contact, although the defendant would occasionally text message the victim, and the

victim noticed the defendant's car parked outside her house on

multiple instances.

On February 8, 2020, the defendant sent the victim two text

messages: the first, sent at 4:29 A.M., read, "I wish u all die

bitch I'm so hurt and it still hurt fuck u I hope u die bitch;"

the second, sent at 5 A.M., read, "It hurts so much it hurts a

lot oh" (February 8 text messages).

The next day, February 9, 2020, the victim went to a

fundraiser to play with her band around 11 A.M. The defendant

later arrived at the fundraiser with his two children. When the

children saw the victim, they ran to her and hugged her. By

2 P.M., the victim's band had already played, so she left. As

she departed, the defendant followed her outside while yelling

and screaming. At 4:03 P.M., the defendant sent the victim a

text message saying: "I swear to god if you touch my [kids] one

more time I'll punch you in your fucking face Bitch, I'm not

going to repeat myself again" (February 9 text message).

The defendant argues that the February 8 text messages were

evidence of prior bad acts and should not have been admitted.

"[T]he prosecution may introduce evidence of a defendant's prior

bad acts, if relevant, to show a common scheme or course of

conduct, a pattern of operation, absence of accident or mistake,

intent, or motive." Commonwealth v. Julien, 59 Mass. App. Ct.

2 679, 686 (2003), quoting Commonwealth v. Roche, 44 Mass. App.

Ct. 372, 380 (1998). "Even if such evidence is relevant for

other purposes, however, its probative value must not be

outweighed by its prejudicial effect." Commonwealth v. Oberle,

476 Mass. 539, 550 (2017). "Determinations of the relevance,

probative value, and prejudice of such evidence are left to the

sound discretion of the judge, whose decision to admit such

evidence will be upheld absent clear error." Id., quoting

Commonwealth v. Robidoux, 450 Mass. 144, 158-159 (2007).

The judge did not abuse her discretion here. As the judge

noted, the February 8 text messages were very close in time to

the threat, and were relevant to whether the February 9 text

message "could reasonably have caused the victim to whom it was

conveyed to fear [that] the defendant had both the intention and

ability to carry out [the] threat." See Commonwealth v. Chin,

97 Mass. App. Ct. 188, 201 (2020) ("When prior bad act evidence

that occurred close in time to the date of the offense bears

directly on the central issues in a case, the value of admitting

it is not outweighed by the danger of unfair prejudice"). The

judge could reasonably conclude that the February 8 text

messages were relevant to understand the meaning and intent of

the text message sent the following day. Additionally, the

judge carefully limited the jury's consideration of the February

8 text messages by instructing the jury that they could be

3 considered "solely on the limited issue of whether the defendant

made the threat under circumstances which could reasonably have

caused the person to whom it was . . . conveyed to fear the

defendant," and not "for any other purpose." See Commonwealth

v. Andrade, 468 Mass. 543, 549 (2014) ("The jury are presumed to

follow the judge's instructions"). There was no error in

admitting the February 8 text messages for that limited purpose.

The defendant next argues that the February 9 text message

did not constitute a true threat, but rather was simply an

expression of a lawful demand that the victim refrain from

touching his children. To sustain a conviction for threatening

to commit a crime under G. L. c. 275, § 2, the Commonwealth is

required to prove beyond a reasonable doubt that the defendant

expressed an "intention to inflict a crime on another and an

ability to do so in circumstances that would justify

apprehension on the part of the recipient of the threat."

Commonwealth v. Hamilton, 459 Mass. 422, 426-427 (2011), quoting

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

Taken in the light most favorable to the Commonwealth, the

evidence permitted the jury to find beyond a reasonable doubt

that the February 9 text message was not merely a demand that

the victim refrain from touching the defendant's children, but

was coupled with a threatened battery. See Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979). Even accepting that the

4 defendant had a right to demand that the victim not return a hug

from his children, that right did not extend to threatening to

"punch [her] in [the] fucking face" should she do so. See

Commonwealth v. Allen, 474 Mass. 162, 168-169 (2016) (defense of

another requires reasonable belief that third person being

unlawfully attacked). Moreover, the evidence permitted the jury

to find that the defendant had the ability to carry out that

threat, not least because he knew where the victim lived. The

circumstances, including the nature of the prior relationship

between the defendant and the victim, the content of the

February 8 text messages, and the conflict between the defendant

and the victim that day, permitted the jury to find that the

victim's fear was reasonable. See Hamilton, 459 Mass. at 426.

Judgment affirmed.

By the Court (Wolohojian, Milkey & D'Angelo, JJ. 1),

Assistant Clerk

Entered: January 30, 2024.

1 The panelists are listed in order of seniority.