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
22-P-925
COMMONWEALTH
vs.
MARCOS GOMEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Marcos Gomez, appeals from his convictions
of assault and battery on a family or household member, G. L.
c. 265, § 13M (a); three counts of violating an abuse prevention
order, G. L. c. 209A, § 7; and witness intimidation, G. L.
c. 268, § 13B. 1 Concluding that the WhatsApp 2 text messages and
voicemails were properly authenticated and there was sufficient
evidence that the defendant intimidated the victim, we affirm.
1. Authentication of WhatsApp text messages and
voicemails. "In the case of a digital communication that is
1The jury acquitted the defendant of kidnapping, G. L. c. 265, § 26; and rape, G. L. c. 265, § 22 (b).
2WhatsApp is a communication platform that allows users to send text messages, voice messages, images, videos, and files and to make voice and video calls. See WhatsApp Inc. v. NSO Group Techs. Ltd., 17 F.4th 930, 933 (9th Cir. 2021), cert. denied, 143 S. Ct. 562 (2023). relevant only if authored by the defendant, a judge is required
to determine whether there is sufficient evidence to persuade a
reasonable trier of fact that it is more likely than not that
the defendant was the author of the communication."
Commonwealth v. Meola, 95 Mass. App. Ct. 303, 308 (2019).
"Evidence that the defendant's name is written as the author of
an [electronic communication] that bears the defendant's name is
not sufficient alone to authenticate the electronic
communication as having been authored or sent by the defendant."
Commonwealth v. Purdy, 459 Mass. 442, 450 (2011). "There must
be some 'confirming circumstances' sufficient for a reasonable
jury to find by a preponderance of the evidence that the
defendant authored the [electronic communications]." Id.,
quoting Commonwealth v. Hartford, 346 Mass. 482, 488 (1963).
"We review a judge's preliminary determination of conditional
relevancy under Mass. G. Evid. § 104(b) under an abuse of
discretion standard." Meola, supra at 309.
Here, the text and voice messages contain details that
adequately identify the defendant as their author. The victim
testified that, at the bar before the crimes, the defendant
walked over to her and said, "why don't you look at your phone
and read your messages?" One of the text messages from the
defendant is from this time and says, "You are well entertained
ma!!" The victim testified that, while she and the defendant
2 were in the parking lot outside of the bar, the defendant
accused her of scratching his face. In a voice message the next
day, the defendant said that the victim had "sow[ed her] nails
on [his] face." The victim testified that, on November 12, the
defendant told the victim that, "if [she was] going to go do the
laundry, then wait -- wait for [him] and [they would] go
together." The text messages from the defendant that day
include, "Did you go to wash?" and, "If you have not gone wait
for me." Additionally, there are ten text or voice messages in
which the defendant appeared to reference or apologize for the
crimes that the victim described happening on November 11 and
12. In short, the content of the voice and text messages
contain adequate confirming circumstances to establish that it
was "more likely than not that the defendant was the author of
the communication[s]." Meola, 95 Mass. App. Ct. at 308. See
Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 674-675 (2011)
(defendant's actions "served to authenticate the e-mails" where
he "provided his telephone number and photograph" and "indicated
that [he] would be at a certain place at a certain time and
. . . appeared at that place and time").
2. Sufficiency of the evidence of witness intimidation.
"When reviewing the denial of a motion for a required finding of
not guilty, 'we consider the evidence introduced at trial in the
light most favorable to the Commonwealth, and determine whether
3 a rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.'" Commonwealth v.
Quinones, 95 Mass. App. Ct. 156, 162 (2019), quoting
Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018).
"The inferences that support a conviction 'need only be
reasonable and possible; [they] need not be necessary or
inescapable.'" Commonwealth v. Chin, 97 Mass. App. Ct. 188, 195
(2020), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295,
303 (2016).
A conviction of witness intimidation requires a showing
that the defendant "threatened, intimidated, or harassed" the
victim. Commonwealth v. Gardner, 102 Mass. App. Ct. 299, 304
(2023). 3 Conduct is intimidating if the "acts or words . . .
would instill fear in a reasonable person." Commonwealth v.
Rivera, 76 Mass. App. Ct. 530, 535 (2010). It is not "necessary
to establish that the intimidation was successful in the sense
that the target of the intimidating conduct was actually
frightened and made reluctant to testify." Id.
Here, all of the defendant's communications to the victim
must be considered in light of the fact that they occurred soon
after the defendant scratched the victim's face, bit off her
3 The defendant does not challenge the sufficiency of the evidence supporting the other elements of witness intimidation. See Gardner, 102 Mass. App. Ct. at 304.
4 acrylic nails "to teach [her] a lesson," told her, "we're going
to die, both of us today," injured her hand with her ring, and
then raped her twice. 4 The day of the second rape, the defendant
inundated the victim with voice messages, text messages, and
calls. 5 In the midst of these communications, the victim texted
the defendant, "I don't want to talk" and, "Leave me alone."
Shortly thereafter, he sent a voice message saying, "Where are
you little one? I passed by your house and You are not there."
That night, the defendant sent the victim several messages
discouraging her from contacting the police.
After the defendant was arrested, he attempted to call the
victim from jail twice. For the first call, the defendant
called a third person who added the victim to the call, and the
victim hung up immediately. During the second call, the
defendant asked the victim to forgive him, told her that he
"trust[ed] God that soon [he would] leave [jail]," and asked her
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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
22-P-925
COMMONWEALTH
vs.
MARCOS GOMEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Marcos Gomez, appeals from his convictions
of assault and battery on a family or household member, G. L.
c. 265, § 13M (a); three counts of violating an abuse prevention
order, G. L. c. 209A, § 7; and witness intimidation, G. L.
c. 268, § 13B. 1 Concluding that the WhatsApp 2 text messages and
voicemails were properly authenticated and there was sufficient
evidence that the defendant intimidated the victim, we affirm.
1. Authentication of WhatsApp text messages and
voicemails. "In the case of a digital communication that is
1The jury acquitted the defendant of kidnapping, G. L. c. 265, § 26; and rape, G. L. c. 265, § 22 (b).
2WhatsApp is a communication platform that allows users to send text messages, voice messages, images, videos, and files and to make voice and video calls. See WhatsApp Inc. v. NSO Group Techs. Ltd., 17 F.4th 930, 933 (9th Cir. 2021), cert. denied, 143 S. Ct. 562 (2023). relevant only if authored by the defendant, a judge is required
to determine whether there is sufficient evidence to persuade a
reasonable trier of fact that it is more likely than not that
the defendant was the author of the communication."
Commonwealth v. Meola, 95 Mass. App. Ct. 303, 308 (2019).
"Evidence that the defendant's name is written as the author of
an [electronic communication] that bears the defendant's name is
not sufficient alone to authenticate the electronic
communication as having been authored or sent by the defendant."
Commonwealth v. Purdy, 459 Mass. 442, 450 (2011). "There must
be some 'confirming circumstances' sufficient for a reasonable
jury to find by a preponderance of the evidence that the
defendant authored the [electronic communications]." Id.,
quoting Commonwealth v. Hartford, 346 Mass. 482, 488 (1963).
"We review a judge's preliminary determination of conditional
relevancy under Mass. G. Evid. § 104(b) under an abuse of
discretion standard." Meola, supra at 309.
Here, the text and voice messages contain details that
adequately identify the defendant as their author. The victim
testified that, at the bar before the crimes, the defendant
walked over to her and said, "why don't you look at your phone
and read your messages?" One of the text messages from the
defendant is from this time and says, "You are well entertained
ma!!" The victim testified that, while she and the defendant
2 were in the parking lot outside of the bar, the defendant
accused her of scratching his face. In a voice message the next
day, the defendant said that the victim had "sow[ed her] nails
on [his] face." The victim testified that, on November 12, the
defendant told the victim that, "if [she was] going to go do the
laundry, then wait -- wait for [him] and [they would] go
together." The text messages from the defendant that day
include, "Did you go to wash?" and, "If you have not gone wait
for me." Additionally, there are ten text or voice messages in
which the defendant appeared to reference or apologize for the
crimes that the victim described happening on November 11 and
12. In short, the content of the voice and text messages
contain adequate confirming circumstances to establish that it
was "more likely than not that the defendant was the author of
the communication[s]." Meola, 95 Mass. App. Ct. at 308. See
Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 674-675 (2011)
(defendant's actions "served to authenticate the e-mails" where
he "provided his telephone number and photograph" and "indicated
that [he] would be at a certain place at a certain time and
. . . appeared at that place and time").
2. Sufficiency of the evidence of witness intimidation.
"When reviewing the denial of a motion for a required finding of
not guilty, 'we consider the evidence introduced at trial in the
light most favorable to the Commonwealth, and determine whether
3 a rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.'" Commonwealth v.
Quinones, 95 Mass. App. Ct. 156, 162 (2019), quoting
Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018).
"The inferences that support a conviction 'need only be
reasonable and possible; [they] need not be necessary or
inescapable.'" Commonwealth v. Chin, 97 Mass. App. Ct. 188, 195
(2020), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295,
303 (2016).
A conviction of witness intimidation requires a showing
that the defendant "threatened, intimidated, or harassed" the
victim. Commonwealth v. Gardner, 102 Mass. App. Ct. 299, 304
(2023). 3 Conduct is intimidating if the "acts or words . . .
would instill fear in a reasonable person." Commonwealth v.
Rivera, 76 Mass. App. Ct. 530, 535 (2010). It is not "necessary
to establish that the intimidation was successful in the sense
that the target of the intimidating conduct was actually
frightened and made reluctant to testify." Id.
Here, all of the defendant's communications to the victim
must be considered in light of the fact that they occurred soon
after the defendant scratched the victim's face, bit off her
3 The defendant does not challenge the sufficiency of the evidence supporting the other elements of witness intimidation. See Gardner, 102 Mass. App. Ct. at 304.
4 acrylic nails "to teach [her] a lesson," told her, "we're going
to die, both of us today," injured her hand with her ring, and
then raped her twice. 4 The day of the second rape, the defendant
inundated the victim with voice messages, text messages, and
calls. 5 In the midst of these communications, the victim texted
the defendant, "I don't want to talk" and, "Leave me alone."
Shortly thereafter, he sent a voice message saying, "Where are
you little one? I passed by your house and You are not there."
That night, the defendant sent the victim several messages
discouraging her from contacting the police.
After the defendant was arrested, he attempted to call the
victim from jail twice. For the first call, the defendant
called a third person who added the victim to the call, and the
victim hung up immediately. During the second call, the
defendant asked the victim to forgive him, told her that he
"trust[ed] God that soon [he would] leave [jail]," and asked her
4 Although the jury acquitted the defendant of kidnapping and raping the victim, "[a] jury may acquit the defendant on one charge and find the defendant guilty on a different charge, even if certain evidence goes to both charges." Commonwealth v. Howe, 103 Mass. App. Ct. 354, 357 n.3 (2023). The trial judge, in ruling on the defendant's motion for a required finding of not guilty, did not need to (and could not) consider the later jury verdicts.
5 The defendant sent the victim fourteen voice messages, twenty-four text messages, and one photo, and tried to call her four times, including twenty-one communications after the victim texted him, "I don't want to talk" and, "Leave me alone."
5 to help him. She told him that she "[couldn't] help [him]
anymore" because she had already given her statement to law
enforcement, and the defendant replied, "You can do more. You
can be of great help. And I will thank you for all my life and
my children will thank you. I really give thanks for what has
happened."
Finally, the defendant mailed the victim a letter. In the
letter, the defendant expressed surprise that the victim had
accused him of rape and claimed that, after he was charged with
rape, other prisoners had "lynched" him, breaking his arm, head,
and ribs. He asked the victim to forgive him, then wrote,
"I want to beg you, ma!! please don't make my crime more serious, for the love that united us one day please soften your heart and do not accuse me anymore, I promise that I will not bother you again, I will let you make your life as you want but give me the opportunity to have a life outside these bars, I want to serve God. I already received my punishment love please let me out of here."
The defendant went on to claim that "every 2 days they give
[him] a bread with ham and a glass of water," suggested that he
might die soon, then told the victim to "just leave [him] alone
in the courts so that they dismiss the case . . . be it the last
thing [the victim does] for [him]."
In light of the defendant's escalating verbal and physical
abuse during their dating relationship, the jury could find that
these communications to the victim were intimidating, implicitly
suggesting that he blamed her for the serious violence he had
6 suffered. See Gardner, 102 Mass. App. Ct. at 305 (defendant's
"repeated references to the victim as both the reason for his
incarceration and prosecution and the only potential key to his
freedom" intimidating "in the context of the defendant's long-
standing pattern of controlling and abusive conduct toward the
victim"). Where the defendant had already responded to being
scratched with such extreme violence, these communications
suggested even greater danger to the victim if she did not
follow the defendant's instructions to drop the charges. See
Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613 (2007),
quoting Commonwealth v. Sholley, 432 Mass. 721, 725 (2000),
cert. denied, 532 U.S. 980 (2001) ("jury may consider the
context in which the allegedly threatening statement was made
and all of the surrounding circumstances").
Judgments affirmed.
By the Court (Green, C.J., Henry & Ditkoff, JJ. 6),
Assistant Clerk
Entered: May 8, 2024.
6 The panelists are listed in order of seniority.