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
24-P-1147
COMMONWEALTH
vs.
CHRISTOPHER N. TARTAGLIONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant was
convicted of a single count of threatening to commit a crime.
See G. L. c. 275, § 2. We conclude that the evidence was
sufficient to support the defendant's conviction. And although
the jury were not instructed that the Commonwealth bore the
burden of proving that the defendant "consciously disregarded a
substantial risk that his communications [to the victim] would
be viewed as threatening violence," Counterman v. Colorado, 600
U.S. 66, 69 (2023), we conclude that the evidence at trial made
the inference of such conscious disregard "ineluctable, or
inescapable," Commonwealth v. Desiderio, 491 Mass. 809, 820
(2023); accordingly, we affirm the judgment. Facts. Because the defendant challenges the sufficiency of
the evidence underlying his conviction, we summarize the trial
evidence in the light most favorable to the Commonwealth. See
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The
charge against the defendant had its origins in a verbal
altercation between the defendant and the victim -- his landlord
-- after the defendant had words with the victim's wife inside
the victim's home.
At approximately 11 A.M. on May 6, 2023, the defendant and
the victim's wife came into the same room of the house from
opposite directions. Both the wife and the defendant had dogs
with them; the dogs, which were leashed, "got . . . excited and
started running towards each other." The defendant began
"yelling and screaming" at the wife; in response, the victim --
who was seated in the same room, removing his work boots --
stood up while holding the boots, told the defendant to stop
speaking disrespectfully to his wife, and gestured with the
boots as if to hit the victim.1 After stepping away from the
victim briefly, the defendant came within inches of the victim,
jabbing his finger toward the victim and shouting at him. By
his own account, the defendant twice said that he would beat the
1 As a result of this conduct, the victim was charged and convicted of assaulting the defendant.
2 victim up.2 The victim, who was in fear "to some degree" based
on the defendant's words, stepped back, and the defendant
followed, continuing to yell and point at the victim as the
victim put the boots down on a fireplace hearth. The victim
stepped forward and appeared to try to head-butt the defendant,
and the defendant subsequently left the house, whereupon he
called the police. The exchange, up to the point when the
defendant left the house, was captured on a video recording that
the Commonwealth played for the jury.3
Discussion. 1. Sufficiency of the evidence. As relevant
here, to prove the defendant guilty of threatening to commit a
crime, the Commonwealth was required to prove five elements
beyond a reasonable doubt: (1) that the defendant expressed an
intent to injure the victim; (2) that the defendant intended
that his threat be conveyed to the victim; (3) that the injury,
if carried out, would constitute a crime; (4) that the defendant
made the threat under circumstances which could reasonably have
caused the victim to fear that the defendant had both the
2 According to the victim, the defendant said "he was going to beat the F out of [the victim] and burn [or bury] [him] outside." The defendant testified that he told the victim that "[he] would kick the fuck out of him." The difference between these accounts of the defendant's words is not significant to our analysis.
3 The video recording is included in our record.
3 intention and the ability to carry out the threat; and (5) that
the defendant was aware that others could regard his statement
as threatening violence, and he delivered it anyway. See
Commonwealth v. Cruz, 495 Mass. 110, 113-114 (2024). The
defendant challenges only the fourth element, contending that
"there was no record evidence that [he] had the intention or
ability to carry out the alleged threat . . . or . . . that a
reasonable person in [the victim's] shoes would have been in
fear." We do not agree.
The defendant's intent to batter the victim was readily
inferable from his own trial testimony that in the midst of a
heated yelling match with the victim, and while the two men were
standing toe-to-toe, the defendant told the victim that he
"would kick the fuck out of him." See Commonwealth v. Sholley,
432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001) (in
assessing alleged threat, "the jury may consider the context in
which the . . . statement was made"); Commonwealth v. Elliffe,
47 Mass. App. Ct. 580, 583 (1999) (among factors from which jury
could draw inference that defendant intended violence was
"evidence that the defendant repeatedly shouted, 'Drop the
charges!' while he was 'very, very angry,' 'standing two feet
from [the victim]'"). Likewise, based on the dynamics between
the defendant and the victim and their apparent similarities in
size and mobility (as documented on the video recording of the
4 altercation), the jury could have found that the victim
reasonably feared that the defendant would make good on his
statement. See Commonwealth v. Strahan, 39 Mass. App. Ct. 928,
930 (1995) ("[w]hether the defendant ultimately might not carry
out the threat is not relevant to the question of sufficiency"
of evidence that threat was made). This evidence was sufficient
to demonstrate that, considered against an objective standard,
the defendant's words "would cause the target of the threat to
fear that the threatened crime or injury might be inflicted."4
Commonwealth v. Leonardo L., 100 Mass. App. Ct. 109, 114 (2021),
quoting Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 436
(2004). See Sholley, supra at 726 ("the context of the
statement and the defendant's demeanor at the time [the threat
was made]" are relevant to reasonableness of victim's fear);
Commonwealth v. Chalifoux, 362 Mass. 811, 816-817 (1973)
(evidence of victim's subjective fear is relevant to question
whether fear was objectively reasonable); Commonwealth v.
Winter, 9 Mass. App. Ct. 512, 528 (1980) (same).
4 To the extent the defendant argues that the video recording shows that the victim was not afraid of the defendant, even after the defendant made the statements about beating the victim up, the defendant overlooks our standard of review.
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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
24-P-1147
COMMONWEALTH
vs.
CHRISTOPHER N. TARTAGLIONE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant was
convicted of a single count of threatening to commit a crime.
See G. L. c. 275, § 2. We conclude that the evidence was
sufficient to support the defendant's conviction. And although
the jury were not instructed that the Commonwealth bore the
burden of proving that the defendant "consciously disregarded a
substantial risk that his communications [to the victim] would
be viewed as threatening violence," Counterman v. Colorado, 600
U.S. 66, 69 (2023), we conclude that the evidence at trial made
the inference of such conscious disregard "ineluctable, or
inescapable," Commonwealth v. Desiderio, 491 Mass. 809, 820
(2023); accordingly, we affirm the judgment. Facts. Because the defendant challenges the sufficiency of
the evidence underlying his conviction, we summarize the trial
evidence in the light most favorable to the Commonwealth. See
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The
charge against the defendant had its origins in a verbal
altercation between the defendant and the victim -- his landlord
-- after the defendant had words with the victim's wife inside
the victim's home.
At approximately 11 A.M. on May 6, 2023, the defendant and
the victim's wife came into the same room of the house from
opposite directions. Both the wife and the defendant had dogs
with them; the dogs, which were leashed, "got . . . excited and
started running towards each other." The defendant began
"yelling and screaming" at the wife; in response, the victim --
who was seated in the same room, removing his work boots --
stood up while holding the boots, told the defendant to stop
speaking disrespectfully to his wife, and gestured with the
boots as if to hit the victim.1 After stepping away from the
victim briefly, the defendant came within inches of the victim,
jabbing his finger toward the victim and shouting at him. By
his own account, the defendant twice said that he would beat the
1 As a result of this conduct, the victim was charged and convicted of assaulting the defendant.
2 victim up.2 The victim, who was in fear "to some degree" based
on the defendant's words, stepped back, and the defendant
followed, continuing to yell and point at the victim as the
victim put the boots down on a fireplace hearth. The victim
stepped forward and appeared to try to head-butt the defendant,
and the defendant subsequently left the house, whereupon he
called the police. The exchange, up to the point when the
defendant left the house, was captured on a video recording that
the Commonwealth played for the jury.3
Discussion. 1. Sufficiency of the evidence. As relevant
here, to prove the defendant guilty of threatening to commit a
crime, the Commonwealth was required to prove five elements
beyond a reasonable doubt: (1) that the defendant expressed an
intent to injure the victim; (2) that the defendant intended
that his threat be conveyed to the victim; (3) that the injury,
if carried out, would constitute a crime; (4) that the defendant
made the threat under circumstances which could reasonably have
caused the victim to fear that the defendant had both the
2 According to the victim, the defendant said "he was going to beat the F out of [the victim] and burn [or bury] [him] outside." The defendant testified that he told the victim that "[he] would kick the fuck out of him." The difference between these accounts of the defendant's words is not significant to our analysis.
3 The video recording is included in our record.
3 intention and the ability to carry out the threat; and (5) that
the defendant was aware that others could regard his statement
as threatening violence, and he delivered it anyway. See
Commonwealth v. Cruz, 495 Mass. 110, 113-114 (2024). The
defendant challenges only the fourth element, contending that
"there was no record evidence that [he] had the intention or
ability to carry out the alleged threat . . . or . . . that a
reasonable person in [the victim's] shoes would have been in
fear." We do not agree.
The defendant's intent to batter the victim was readily
inferable from his own trial testimony that in the midst of a
heated yelling match with the victim, and while the two men were
standing toe-to-toe, the defendant told the victim that he
"would kick the fuck out of him." See Commonwealth v. Sholley,
432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001) (in
assessing alleged threat, "the jury may consider the context in
which the . . . statement was made"); Commonwealth v. Elliffe,
47 Mass. App. Ct. 580, 583 (1999) (among factors from which jury
could draw inference that defendant intended violence was
"evidence that the defendant repeatedly shouted, 'Drop the
charges!' while he was 'very, very angry,' 'standing two feet
from [the victim]'"). Likewise, based on the dynamics between
the defendant and the victim and their apparent similarities in
size and mobility (as documented on the video recording of the
4 altercation), the jury could have found that the victim
reasonably feared that the defendant would make good on his
statement. See Commonwealth v. Strahan, 39 Mass. App. Ct. 928,
930 (1995) ("[w]hether the defendant ultimately might not carry
out the threat is not relevant to the question of sufficiency"
of evidence that threat was made). This evidence was sufficient
to demonstrate that, considered against an objective standard,
the defendant's words "would cause the target of the threat to
fear that the threatened crime or injury might be inflicted."4
Commonwealth v. Leonardo L., 100 Mass. App. Ct. 109, 114 (2021),
quoting Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 436
(2004). See Sholley, supra at 726 ("the context of the
statement and the defendant's demeanor at the time [the threat
was made]" are relevant to reasonableness of victim's fear);
Commonwealth v. Chalifoux, 362 Mass. 811, 816-817 (1973)
(evidence of victim's subjective fear is relevant to question
whether fear was objectively reasonable); Commonwealth v.
Winter, 9 Mass. App. Ct. 512, 528 (1980) (same).
4 To the extent the defendant argues that the video recording shows that the victim was not afraid of the defendant, even after the defendant made the statements about beating the victim up, the defendant overlooks our standard of review. See Latimore, 378 Mass. at 676-677.
5 2. Counterman issue.5 In Counterman, an opinion released
shortly before the trial in this case, the United States Supreme
Court ruled that because the First Amendment "shield[s] some
true threats from liability," Counterman, 600 U.S. at 75, the
maker of a true threat may be subject to criminal conviction
only if the prosecution proves that "the person acted at least
recklessly -- that is, the person is aware that others could
regard his statements as threatening violence and delivers them
anyway" (quotations omitted). Cruz, 495 Mass. at 113, quoting
Counterman, supra at 79. In Cruz, the Supreme Judicial Court
adopted the reasoning in Counterman, and in an Appendix, issued
provisional jury instructions containing a fifth element
required to prove a charge under G. L. c. 275, § 2.6 See Cruz,
supra at 115 n.7, 118 (Appendix).
5 The Commonwealth raised this issue in its brief and took the position that the defendant's conviction should be vacated because the jury were not instructed on the final element of the threat charge, as set forth in Counterman and Cruz. At oral argument, defense counsel agreed that the conviction should be vacated but maintained that the evidence was insufficient to permit a retrial. As is our duty, we have independently reviewed the issue. See, e.g., Commonwealth v. Escalera, 462 Mass. 636, 650 (2012); Commonwealth v. Luciano, 79 Mass. App. Ct. 54, 61 (2011).
6 The relevant language in the provisional instruction requires the Commonwealth to prove beyond a reasonable doubt, inter alia, "That the defendant was aware of or consciously disregarded a substantial risk that the communication would be viewed as threatening violence. This element requires that the defendant was aware that others could regard his statement as
6 The trial in this case was conducted in April 2024, after
the Supreme Court issued its opinion in Counterman but before
the Supreme Judicial Court released its ruling in Cruz. See
Counterman, 600 U.S. at 66; Cruz, 495 Mass. at 110. The judge
instructed the jury on the law as it existed before Counterman
but was not asked to instruct the jury on the new element of the
crime of threats as articulated in Counterman, supra at 79. The
omission of the final element of the offense from the jury
instructions raises the question whether the defendant's
conviction must be vacated because it violates the First
Amendment. See Cruz, supra at 114. "[T]o determine whether a
substantial risk of a miscarriage of justice is created by the
omission of a required element from the jury instructions, the
question is . . . whether the presence of the omitted element
was an ineluctable, or inescapable, inference from the evidence
presented at trial." Desiderio, 491 Mass. at 820, citing
Commonwealth v. Azar, 435 Mass. 675, 688 (2002), S.C., 444 Mass.
72 (2005).
On the evidence here, we conclude that the omission of a
Counterman instruction did not create a substantial risk of a
miscarriage of justice. In the course of a heated face-to-face
confrontation in which the victim had already assaulted him, the
threatening violence and yet the defendant delivered it anyway." Cruz, 495 Mass. at 118 (Appendix).
7 defendant made his threat to commit an act of violence against
the victim for the express purpose of deterring the victim from
taking any further violent action against him. On this basis,
Cruz is distinguishable. In Cruz, the defendant's threat -- "I
swear to god if you touch my [kids] one more time I'll punch you
in your fucking face Bitch" -- was conveyed via text message two
hours after his verbal confrontation with the victim. Cruz, 495
Mass. at 112. In those circumstances, there was at least some
possibility that a jury could find both that the defendant
believed that others would dismiss his message as mere posturing
and that he did not appreciate that his message would be
received as a serious threat of violence. See id. at 113,
quoting Counterman, 600 U.S. at 79 ("to convict a person for
making a true threat, the State must prove that . . . the person
is aware that others could regard his statements as threatening
violence and delivers them anyway" [quotations omitted]).
Here, in contrast, given the defendant's words, the context
in which he said them (described by both the defendant and the
victim, as well as documented in the video recording of the
incident), and his purpose in making the threats, the only
reasonable inference the jury could have drawn from the evidence
was that the defendant was aware that others (and, specifically,
the victim) "'could regard his statements as' threatening
violence," Cruz, 495 Mass. at 113, quoting Counterman, 600 U.S.
8 at 79, and that he delivered them anyway in hopes that the
victim would regard them that way. Because the evidence at
trial led ineluctably to that inference, we are satisfied that
the defendant's First Amendment rights were not infringed.
Contrast Desiderio, 491 Mass. at 821 (circumstantial evidence of
missing element "told a powerful and persuasive story," but did
not "require the jury to find" missing element).
Judgment affirmed.
By the Court (Ditkoff, Hand & Grant, JJ.7),
Clerk
Entered: September 11, 2025.
7 The panelists are listed in order of seniority.