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
25-P-495
COMMONWEALTH
vs.
ROBERT SANDERSON, SR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the
defendant, Robert Sanderson, Sr., was convicted of one count of
assault and battery on a family or household member, in
violation of G. L. c. 265, § 13M (a), and one count of witness
intimidation, in violation of G. L. c. 268, § 13B (b).1 This
appeal only concerns the latter conviction which arose from
separate incidents that occurred on July 13, 2021, and August 2,
2021. The defendant challenges the sufficiency of the evidence
1The defendant also was charged with kidnapping and strangulation or suffocation. At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty on the kidnapping charge. The judge denied the motion, and the jury acquitted the defendant of both kidnapping and strangulation or suffocation. and contends that the Commonwealth failed to prove that he
committed the crime of intimidation of a witness on either day.
We conclude that the evidence was sufficient to establish beyond
a reasonable doubt that the defendant committed the offense on
July 13, but was insufficient to sustain a conviction based on
the events which occurred on August 2. Because the jury
returned a general verdict, it is not possible to discern the
basis on which the jury concluded that the defendant was guilty.
Consequently, the judgment of conviction of witness intimidation
is vacated and the verdict set aside.
Background. We summarize the evidence presented at trial
in the light most favorable to the Commonwealth. See
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The
victim and the defendant began a romantic relationship in
September 2018. By the summer of 2021, the two lived in
separate residences but were still romantically involved.
During the course of the relationship, the defendant introduced
the victim to Percocet, which she began to take regularly.
Later, the defendant provided the victim with cocaine, fentanyl,
and heroin. The victim became dependent on the defendant to
supply her with drugs and endured his verbal and physical abuse
to protect that supply.
On the morning of July 13, 2021, the victim and the
defendant were in the victim's apartment. The defendant had
2 stayed over the night before and when the victim attempted to
wake him up, the defendant became angry, shouted profanities,
and punched the victim in the face. The ring on the defendant's
finger cut the victim's cheek, causing significant bleeding.
The victim then left the apartment to drive her eleven year old
daughter to a friend's house. She told her daughter that she
had fallen and did not disclose that the defendant had hit her.
When she returned home, the defendant realized that the victim
needed stitches and reluctantly drove her to the hospital.
While en route, the defendant told the victim that she
"better not tell [the hospital staff] . . . what happened." He
then instructed her to say that she had become dizzy, fallen,
struck her head on the counter, and he had found her
unconscious. The defendant rehearsed the false story with the
victim multiple times on the way to the hospital. While the two
were in the emergency room, the defendant remained beside the
victim as she repeated the falsehood to medical personnel. At
one point the defendant was asked to leave the room while the
victim received stitches. He did not go far. He stood outside
the door and gestured to the victim in a way that signaled to
her that she should continue lying. The victim testified that
she lied because she was afraid of the defendant's reaction if
she told the truth, which she believed would include him
yelling, belittling, and hitting her.
3 A few weeks later, on the morning of August 2, 2021, the
victim and the defendant were sitting in her parked car with a
third person when a police officer approached them to conduct a
wellness check prompted by the victim's mother. The defendant
was annoyed and asked the victim "[w]hat the fuck are they here
for" and then stated "[y]our Mom is a bitch[,] [s]he called the
cops on us." The victim and the defendant were both aware that
the mother had filed petitions seeking the victim's involuntary
commitment due to her substance abuse and they both suspected
that the police were coming to apprehend the victim. The victim
got out of her car and spoke to the officer. She told him that
she was fine and that her mother was "just making things up."
After she returned to the car, the defendant asked, "what did
they say to you?" and the victim relayed what she said to the
officers. The defendant responded, "[g]ood job getting rid of
them." The victim testified that once again she lied because
she was afraid of what the defendant might do to her if she told
the truth.2,3
2 The defendant called two witnesses in his defense -- his son and his sister -- both of whom testified that they had not seen the defendant commit any acts of violence against the victim.
3 The victim also testified about a separate incident that occurred a few months later in which the defendant allegedly attempted to strangle her. She testified that she felt as though she was going to black out and that it "felt like forever." She did not report that incident to police at the
4 Discussion. 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 [to] determine whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547
(2017). To sustain a conviction for witness intimidation, the
Commonwealth must prove that
"(1) a possible . . . violation occurred that would trigger a criminal investigation or [criminal or civil]4 proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding." Commonwealth v. Fragata, 480 Mass. 121, 126-27 (2018).
The defendant first argues that the Commonwealth failed to
establish that any reasonable juror could find that he
intimidated the victim based on the events that occurred on July
13, 2021. He contends that he did no more than ask the victim
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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
25-P-495
COMMONWEALTH
vs.
ROBERT SANDERSON, SR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the
defendant, Robert Sanderson, Sr., was convicted of one count of
assault and battery on a family or household member, in
violation of G. L. c. 265, § 13M (a), and one count of witness
intimidation, in violation of G. L. c. 268, § 13B (b).1 This
appeal only concerns the latter conviction which arose from
separate incidents that occurred on July 13, 2021, and August 2,
2021. The defendant challenges the sufficiency of the evidence
1The defendant also was charged with kidnapping and strangulation or suffocation. At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty on the kidnapping charge. The judge denied the motion, and the jury acquitted the defendant of both kidnapping and strangulation or suffocation. and contends that the Commonwealth failed to prove that he
committed the crime of intimidation of a witness on either day.
We conclude that the evidence was sufficient to establish beyond
a reasonable doubt that the defendant committed the offense on
July 13, but was insufficient to sustain a conviction based on
the events which occurred on August 2. Because the jury
returned a general verdict, it is not possible to discern the
basis on which the jury concluded that the defendant was guilty.
Consequently, the judgment of conviction of witness intimidation
is vacated and the verdict set aside.
Background. We summarize the evidence presented at trial
in the light most favorable to the Commonwealth. See
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The
victim and the defendant began a romantic relationship in
September 2018. By the summer of 2021, the two lived in
separate residences but were still romantically involved.
During the course of the relationship, the defendant introduced
the victim to Percocet, which she began to take regularly.
Later, the defendant provided the victim with cocaine, fentanyl,
and heroin. The victim became dependent on the defendant to
supply her with drugs and endured his verbal and physical abuse
to protect that supply.
On the morning of July 13, 2021, the victim and the
defendant were in the victim's apartment. The defendant had
2 stayed over the night before and when the victim attempted to
wake him up, the defendant became angry, shouted profanities,
and punched the victim in the face. The ring on the defendant's
finger cut the victim's cheek, causing significant bleeding.
The victim then left the apartment to drive her eleven year old
daughter to a friend's house. She told her daughter that she
had fallen and did not disclose that the defendant had hit her.
When she returned home, the defendant realized that the victim
needed stitches and reluctantly drove her to the hospital.
While en route, the defendant told the victim that she
"better not tell [the hospital staff] . . . what happened." He
then instructed her to say that she had become dizzy, fallen,
struck her head on the counter, and he had found her
unconscious. The defendant rehearsed the false story with the
victim multiple times on the way to the hospital. While the two
were in the emergency room, the defendant remained beside the
victim as she repeated the falsehood to medical personnel. At
one point the defendant was asked to leave the room while the
victim received stitches. He did not go far. He stood outside
the door and gestured to the victim in a way that signaled to
her that she should continue lying. The victim testified that
she lied because she was afraid of the defendant's reaction if
she told the truth, which she believed would include him
yelling, belittling, and hitting her.
3 A few weeks later, on the morning of August 2, 2021, the
victim and the defendant were sitting in her parked car with a
third person when a police officer approached them to conduct a
wellness check prompted by the victim's mother. The defendant
was annoyed and asked the victim "[w]hat the fuck are they here
for" and then stated "[y]our Mom is a bitch[,] [s]he called the
cops on us." The victim and the defendant were both aware that
the mother had filed petitions seeking the victim's involuntary
commitment due to her substance abuse and they both suspected
that the police were coming to apprehend the victim. The victim
got out of her car and spoke to the officer. She told him that
she was fine and that her mother was "just making things up."
After she returned to the car, the defendant asked, "what did
they say to you?" and the victim relayed what she said to the
officers. The defendant responded, "[g]ood job getting rid of
them." The victim testified that once again she lied because
she was afraid of what the defendant might do to her if she told
the truth.2,3
2 The defendant called two witnesses in his defense -- his son and his sister -- both of whom testified that they had not seen the defendant commit any acts of violence against the victim.
3 The victim also testified about a separate incident that occurred a few months later in which the defendant allegedly attempted to strangle her. She testified that she felt as though she was going to black out and that it "felt like forever." She did not report that incident to police at the
4 Discussion. 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 [to] determine whether a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547
(2017). To sustain a conviction for witness intimidation, the
Commonwealth must prove that
"(1) a possible . . . violation occurred that would trigger a criminal investigation or [criminal or civil]4 proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding." Commonwealth v. Fragata, 480 Mass. 121, 126-27 (2018).
The defendant first argues that the Commonwealth failed to
establish that any reasonable juror could find that he
intimidated the victim based on the events that occurred on July
13, 2021. He contends that he did no more than ask the victim
to lie and that the absence of evidence of a direct threat or
threatening gestures rendered the evidence insufficient to prove
time because she was afraid. This incident was the basis for the charge of strangulation or suffocation of which the defendant was acquitted.
4 In 2018, the Legislature amended the statute to include "civil proceeding[s] of any type." G. L. c. 268 § 13B (b), as amended by St. 2018, c. 69, § 155.
5 that his conduct was intimidating. This argument is unavailing
because it ignores the definition of intimidation and views the
evidence in a light favorable to the defendant instead of the
Commonwealth. Contrary to the defendant's assertion, evidence
of a direct threat or threatening gestures is not required to
satisfy the required element of intimidation. See Commonwealth
v. Carvalho, 88 Mass. App. Ct. 840, 845-846 (2016) (conduct may
fall within statute even where defendant's words are not
"expressly intimidating, threatening, or harassing" [citation
omitted]). Rather, 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). See
Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 100 (2015)
(question whether certain conduct is intimidating depends on
whether defendant "put[s] a person in fear for the purpose of
influencing his or her conduct" [citation omitted]). Here,
particularly in light of the defendant's prior verbal and
physical abuse, the defendant's threat "not [to] tell [the
doctors] . . . what happened" and pressuring the victim to lie
could reasonably be viewed as intimidating. See Commonwealth v.
Gardner, 102 Mass. App. Ct. 299, 304 (2023) ("pressuring the
victim to recant her allegations against him" qualifies as
intimidating behavior under statute). See also Commonwealth v.
Sholley, 432 Mass 721, 725 (2000) ("jury may consider the
6 context in which the allegedly threatening statement was made
and all of the surrounding circumstances").
Next, the defendant argues that even if the Commonwealth
met its burden of proving that the defendant engaged in
intimidating conduct toward the victim, a rational jury could
not find that he did so with the intent to interfere with a
criminal investigation or proceeding.5 We disagree. The
evidence supported a rational inference that the defendant,
having struck the victim in the face causing a serious injury (a
laceration requiring nine stitches), was aware that if the
victim told the truth to medical personnel, he would be subject
to criminal liability. It matters not, as the defendant
contends, that there was no pending criminal investigation at
that time. See Fragata, 480 Mass. at 125 ("investigation need
not have already begun when the intimidation occurred"). The
jury could reasonably infer that the defendant's conduct, namely
insisting that the victim lie and ensuring by his gestures that
she would not reveal the truth, established that the defendant
intended to prevent the victim from furnishing information that
could lead to an investigation into her injuries. See Ruano, 87
Mass. App. Ct. at 101, quoting Commonwealth v. King, 69 Mass.
5 The defendant does not challenge the sufficiency of the evidence supporting the other elements of the offense with respect to the July 13, 2021, incident.
7 App. Ct. 113, 120 (2007) ("[a] fact finder may evaluate the
circumstances in which the statement was made, including its
timing, to determine whether the defendant in fact intended to
intimidate the victim").
The defendant also challenges the sufficiency of the
Commonwealth's evidence regarding the incident that occurred on
August 2, 2021. Although the evidence established that the
victim lied to the police about her wellbeing due to her fear of
the defendant, there was insufficient evidence that the
defendant acted with the "intent to or with reckless disregard
for the fact that [his actions] may . . . impede, obstruct,
delay, prevent or otherwise interfere with . . . [a] criminal
investigation . . . or any other civil proceeding of any type."
G. L. c. 268, § 13B (b). The defendant's statements questioning
the arrival of the police and blaming the victim's mother were
not aimed at the victim and did not convey any explicit or
implicit directive that the victim refrain from speaking with or
mislead the police to obstruct a potential civil commitment. At
best, the evidence demonstrated only that "the defendant engaged
in [nothing] more than abusive speech." Fragata, 480 Mass. at
128. Insulting remarks, even those exacerbated by expletives,
do not suffice and we therefore conclude that the Commonwealth
did not meet its burden of proof.
8 As previously noted, the jury returned a general verdict.
Thus, although the jury was instructed that it must unanimously
agree that the Commonwealth had proved that the defendant
committed the offense on at least one of the two specific dates,6
"it is impossible to tell on which [date] the jury relied."
Fragata, 480 Mass. at 129. "It is well established in this
Commonwealth that a verdict cannot stand unless it appears that
the jury reached their verdict on a theory for which there was
factual support." Id., quoting Commonwealth v. Plunkett, 422
Mass. 634, 635 (1996).
Conclusion. Accordingly, the judgment of conviction of
intimidation of a witness is vacated, and the verdict set aside.
Since sufficient evidence was introduced to support a conviction
of intimidation of a witness based on the events of July 13, the
Commonwealth may retry the defendant as to that incident should
6 The judge instructed as follows:
"If you believe there were acts -- multiple acts of intimidation, you must be unanimously convinced of one of those particular acts . . . . It's not necessary that the Commonwealth to prove or for you all to be agreed that the offense was also committed on other occasions. But you must unanimously agree that the Commonwealth has proved that the defendant committed the offense on at least one of the specific occasions that have been charged."
9 it wish to do so. The judgment of conviction of assault and
battery on a family or household member is affirmed.
So ordered.
By the Court (Vuono, Neyman & Sacks, JJ.7),
Clerk
Entered: April 24, 2026.
7 The panelists are listed in order of seniority.