Commonwealth v. Col K. Tulien.

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-312

COMMONWEALTH

vs.

COL K. TULIEN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of three

counts of assault and battery by means of a dangerous weapon (as

lesser included offenses of assault and battery by means of a

dangerous weapon in violation of an abuse prevention order), six

counts of violating an abuse prevention order, one count of

witness intimidation, threatening to commit a crime, operating a

motor vehicle while under the influence of intoxicating liquor,

and reckless operation of a motor vehicle.1 On appeal the

defendant challenges the sufficiency of the evidence underlying

1The jury acquitted the defendant of assault with intent to
murder, one count of assault and battery by means of a dangerous
weapon in violation of an abuse prevention order, one count of
violating an abuse prevention order, stalking, and one count of
witness intimidation.
his convictions of witness intimidation, violating an abuse

prevention order, assault and battery by means of a dangerous

weapon, and reckless operation of a motor vehicle. He also

argues that his conviction of threatening to commit a crime

cannot stand because the jury were not instructed on the

requisite mens rea in accordance with Counterman v. Colorado,

600 U.S. 66 (2023), which was decided after trial concluded in

this case. We are constrained to agree on this last point and

thus vacate the conviction of threatening to commit a crime. We

affirm the remaining convictions.

Background. We summarize the facts in the light most

favorable to the Commonwealth, reserving certain details for

later discussion. See Commonwealth v. Latimore, 378 Mass. 671,

676-677 (1979).

On February 4, 2020, the defendant's wife (wife) obtained

an ex parte abuse prevention order under G. L. c. 209A against

the defendant. On February 14, 2020, after a hearing at which

the defendant did not appear, a District Court judge extended

the ex parte order for one year.

In the early morning hours of March 18, 2020, the wife was

driving home from work when a car pulled up alongside hers. The

wife rolled down her window and saw that the defendant was

driving the other car. The defendant said to the wife, "Today

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is the last day for me to kill you." The wife immediately

called 911 and drove away at fifty to sixty miles per hour. The

defendant followed -- pursuing the wife through the towns of

Randolph, Canton, and Milton -- and during his pursuit struck

the wife's car with his at least three times. Eventually, the

wife came upon the State Police barracks in Milton and drove

toward it, honking her horn.

State Police Sergeant Kevin Murray was inside the barracks

when he heard a car honking, an engine revving, and yelling from

the parking lot. He went outside and saw the wife standing in

front of her car, screaming and "hysterical." In a different

section of the parking lot, the defendant was standing next to

his car, which had front-end damage and smoke or steam coming

from the engine. As soon as Sergeant Murray looked in his

direction, the defendant returned to his car and drove away.

State Police Trooper Brandon Doherty was monitoring traffic

nearby when Sergeant Murray notified him of the incident at the

barracks. Soon thereafter, Trooper Doherty saw the defendant's

car on Route 28 in Milton. It had "heavy" front-end damage, and

there was steam coming from the hood. After initiating a stop

and advising the defendant of his Miranda rights, Trooper

Doherty asked the defendant what happened to his car. The

defendant replied that he was a delivery driver and that his car

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had been damaged while he was making a delivery. When Trooper

Doherty asked whether the defendant knew that the wife had "an

open restraining order" against him and whether he had made

contact with her, the defendant replied that "he did know that

there was a restraining order" but that he had not seen the wife

that evening. Later in the conversation, however, the defendant

admitted that he had seen the wife that evening, claiming that

"he had accidentally run into her with his car." The defendant

asked Trooper Doherty to relay an apology to the wife, but

Trooper Doherty stated he "wouldn't be able to do that" because

"[t]hat would be a violation of the protective order." Trooper

Doherty then placed the defendant under arrest and transported

him to the barracks.2 While there, the defendant sent the wife

multiple text messages stating, among other things, "You had the

police arrest me again thanks" and "Tell the police to let me

out."3

2 Trooper Doherty formed the opinion that the defendant was
intoxicated based on his observations at the scene and the
defendant's performance on field sobriety tests administered at
the barracks. The defendant also agreed to take a breath test,
which showed that his blood alcohol concentration was .18. The
defendant raises no argument on appeal concerning his conviction
of operating a motor vehicle while under the influence of
intoxicating liquor.

3 The defendant's text messages were mostly written in
Haitian-Creole. We quote from the English translation included
in the record appendix. All quotations are verbatim except
where indicated.

4
On June 18, 2020, the defendant texted the wife again,

asking whether she had "file[d] the taxes yet" and stating,

"What's up, what did you say to the Police . . . you actually

got me jailed." On July 8, 2020, the defendant sent the wife

several text messages in which he stated, "You have my tax

money?? Fuck You . . . give me my fucking tax money." He also

sent her several photographs of his damaged car.

On August 19 and 20, 2020, the defendant sent the wife

numerous text messages over the course of twenty-two hours. In

messages sent on the night of August 19, the defendant told the

wife not to report him to the police and referred several times

to "taking back" "[his] money" and "[his] $2900," which he said

the Internal Revenue Service (IRS) had given to him. He also

called the wife seven times that night and in the early morning

hours of August 20. After receiving no response, the defendant

texted the wife the following message at 8:43 A.M. on August 20:

"Please you don't need to call IRS And you don't need to
call the police to complain about me . . . they will give
us each $2900 for the corona virus . . . I will send you
the divorce papers on March 2021 . . . that's the date I've
decided to do it . . . if I do it now you won't get the
thing . . . because we had suffered a lot together I'll let
you have it . . . you're lucky . . . Tell the court people
you want to drop the complaint please . . . PUA each will
get $2900 Don't call IRS I [illegible] the thing already
. . . it's ok, I made them give us each $2900."

"Please don't tell the people at the court if I texted you
. . . they will put me in jail if I text you."

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The defendant continued to text the wife throughout the day,

apologizing about the damage to her car, offering to buy her a

new one or pay the bill, asking her to call him, and telling

her, "You don't need to be afraid of me."

On August 22, 2020, after still receiving no response from

the wife, the defendant sent her a text message stating, "The

people at the court are going to dismiss the case because they

know I am not a criminal" and "I'll send you the divorce

(documents) on Monday morning." He also sent photographs of

what appeared to be divorce papers. The defendant then texted

that he was "taking back the $2900" and stated, "You don't need

to complain to the police about me . . . the court understands

what's going on."

Discussion. 1. Witness intimidation. The witness

intimidation statute, G. L. c. 268, § 13B (b), provides, in

part, that "[w]hoever willfully, either directly or indirectly:

(i) threatens, attempts or causes physical, emotional or

economic injury or property damage to; (ii) conveys a gift,

offer or promise of anything of value to; or (iii) misleads,

intimidates or harasses another person who is a . . . witness or

potential witness [in a criminal proceeding] . . . shall be

punished." At trial the Commonwealth advanced the theory that

the defendant's 8:43 A.M. text message on August 20 conveyed an

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offer or promise of something of value to the wife and that he

sent the message with the intent to influence the pending

criminal proceeding. The defendant argues that the evidence was

insufficient to support this theory. We disagree.

Viewing the evidence in the light most favorable to the

Commonwealth, reasonable jurors could have found that the

defendant intended his text message to convey to the wife that

the IRS would "give [them] each $2900 for the corona virus" if

he waited to "send . . . the divorce papers on March 2021."

Reasonable jurors could have further construed the statements --

"that's the date I've decided to do it . . . if I do it now you

won't get the thing . . . because we had suffered a lot together

I'll let you have it . . . you're lucky . . . Tell the court

people you want to drop the complaint please" -- to be an offer

or promise to the wife that, if she dropped the complaint, the

defendant would wait to file for divorce, thereby allowing her

to keep the $2900 that he previously demanded she give to him.

Although the text message is somewhat disjointed, the defendant

confirmed that this was his meaning when he testified that he

planned to let the wife keep the money she already received and

ask the IRS to "reissue another check" to him, and agreed on

cross-examination that he was proposing in his text message to

"call[] the IRS, and . . . get [the wife] $2,900" and to wait to

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file for divorce until after the IRS issued the additional

check.4 The totality of this evidence was sufficient to show

that the defendant was guilty of witness intimidation because he

offered or promised the wife something of value if she did not

cooperate in the criminal proceeding. See Commonwealth v.

Bellard, 494 Mass. 446, 448 (2024) (witness intimidation statute

"prohibits the offer of a bribe to a witness or potential

witness"); Commonwealth v. Cruz, 442 Mass. 299, 309 (2004)

(essential element of witness intimidation "is the offer of a

bribe or the use of intimidation, force, or the threat of

force").5

This case is unlike Bellard, on which the defendant relies.

There, the Commonwealth argued that the defendant promised

something of value to his fiancée when he told her that, if she

did not testify at his trial, (1) "their lives would return to

normal" and "they could continue their relationship," and

(2) the Department of Children and Families (DCF) would likely

4 Because the defendant did not move for a required finding
of not guilty on the witness intimidation count of which he was
convicted, we consider "the evidence during the entire trial" in
assessing his sufficiency challenge. Commonwealth v. Dustin,
476 Mass. 1003, 1004 (2016).

5 Given our conclusion in this regard, we need not address
the Commonwealth's alternative argument that there was
sufficient evidence to prove that the defendant intimidated or
harassed the wife.

8
end its investigation into the fiancée's parental fitness.

Bellard, 494 Mass. at 449. The court rejected both arguments,

concluding that the defendant's "expression of a vague interest

in continuing his relationship with the fiancée" was "too

amorphous to constitute a promise," id. at 450, and that the

defendant had no "conceivable ability to deliver" on the second

promise because he "never had, nor could he reasonably have been

expected to have, power to terminate the DCF investigation or

even to make that sought-after outcome marginally more likely to

occur." Id. at 453.

Here, by contrast, the defendant promised to give the wife

money in exchange for her noncooperation in the prosecution.

Unlike the "expression of a vague interest" in maintaining a

personal relationship, money is an identifiable thing of value.

Bellard, 494 Mass. at 449. In addition, the defendant had the

ability to deliver on his promise, as it was within his control

to let the wife keep the $2900 that he had previously insisted

was his money and demanded that she return. On these facts we

see nothing in Bellard that warrants overturning the conviction.

We are also unpersuaded by the defendant's argument that

the Commonwealth failed to prove that he specifically intended

to influence the wife's participation in the criminal

proceeding. The jury could have found the requisite intent

9
based on the statement, "Tell the court people you want to drop

the complaint please," which was interposed between references

to getting "[them] each $2,900." The defendant's testimony, as

described above, supported such a finding. Furthermore, when

the wife did not respond to the text message or the defendant's

requests to call him, the defendant sent additional messages

stating that the court would "dismiss the case" because he was

"not a criminal," that he would send the wife the divorce papers

on Monday morning, and that he was "taking back the $2900."

These messages further supported the inference that the

defendant's earlier promise to let the wife keep the $2,900 was

contingent on her dismissing the complaint. Based on this

evidence, the jury could have found that the defendant acted

with the specific intent of interfering with the criminal

proceeding. See Commonwealth v. Rosario, 83 Mass. App. Ct. 640,

645 (2013) (evidence sufficient to show specific intent where

"conduct at issue reasonably could be viewed as an attempt to

interfere with a witness's testimony").

2. Violation of abuse prevention order. The defendant

challenges his convictions of violating an abuse prevention

order on the ground that the Commonwealth offered insufficient

evidence of the validity of the order. Specifically, the

defendant argues that the Commonwealth failed to prove that he

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received notice of the February 14, 2020 hearing to extend the

ex parte order and that, without such notice, the extended order

is "void." We disagree for two reasons.

First, viewed in the light most favorable to the

Commonwealth, the evidence established that the defendant had

actual or constructive notice of the ex parte order and the date

of the extension hearing. As shown on the face of the ex parte

order, a District Court judge authorized law enforcement to

effect service on the defendant by cell phone if service by hand

was not possible. A Randolph police lieutenant testified that,

because of the emerging COVID-19 pandemic and because the

defendant appeared to live in Brockton, Randolph police decided

to serve the ex parte order by cell phone. Accordingly, on

February 4, 2020, a Randolph police sergeant called the

defendant's cell phone and left a voicemail message notifying

the defendant "that he has a restraining order," of "the various

points of the restraining order," and that he needed to contact

the Randolph police for a copy of the order. The next day, a

different officer (who had passed away by the time of trial)

called the defendant's cell phone and left a second voicemail

message advising him of the order. The defendant's cell phone

records showed that he called the Randolph police station on

February 12, 2020, raising an inference that he received the

11
voicemails. This evidence was sufficient to show that the

defendant had notice of the ex parte order and its "various

points," which included the date of the extension hearing. See

Commonwealth v. Delaney, 425 Mass. 587, 591 n.7 (1997) ("The

adequacy of notice so far as due process is concerned is

dependent on whether the form of notice is reasonably calculated

to give . . . actual notice of the proceedings and an

opportunity to be heard" [quotations and citations omitted]).

At a minimum the evidence was sufficient to show that the

defendant was on inquiry notice, which is sufficient to satisfy

due process because "notice of facts which would incite a person

of reasonable prudence to an inquiry under similar circumstances

is notice of all the facts which a reasonably diligent inquiry

would develop." Id. at 592, quoting Commonwealth v. Olivo, 369

Mass. 62, 69 (1975).

Second, even assuming that the defendant did not receive

notice of the hearing, that would not in itself require reversal

of his convictions. As we held in Commonwealth v. Watson, 94

Mass. App. Ct. 244, 252 (2018), even where a defendant was not

given notice and an opportunity to be heard prior to the

issuance of an abuse prevention order, a conviction of violating

that order "is valid as long as the defendant received actual

notice of the order prior to the alleged violation." Due

12
process is satisfied in this situation because the defendant

"ha[s] the opportunity to seek to have the order vacated." Id.

Here, the Commonwealth met its burden of proving that the

defendant had actual notice of the extended order at the time of

the violations. The jury convicted the defendant of violating

the order on March 18,6 June 18, July 8, August 20, and August

22, 2020. Prior to the violation on March 18, the defendant

admitted to Trooper Doherty that he knew that the wife had "an

open restraining order" against him. Trooper Doherty also told

the defendant that it would be a violation of the order were

Trooper Doherty to relay an apology to the wife on the

defendant's behalf. Based on Trooper Doherty's testimony, the

jury could have found that the defendant knew about the order

when he sent the wife multiple text messages later on March 18

and on the subsequent dates. Moreover, on August 20, the

defendant acknowledged that he was aware of the order when he

texted the wife, "Please don't tell the people at the court if I

texted you . . . they will put me in jail if I text you."

Because the evidence thus showed that the defendant had notice

of the order when he violated it, any lack of notice of the

6 The defendant was charged with committing two violations
on March 18. The jury convicted the defendant of one charge
(electronic message) but acquitted him of the other (verbal
communication or contact).

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hearing does not warrant setting aside his convictions. See

Watson, 94 Mass. App. Ct. at 252.

3. Assault and battery by means of a dangerous weapon.

The defendant next argues that all three convictions of assault

and battery by means of a dangerous weapon must be reversed

because the Commonwealth failed to prove that he "touched" the

wife with the dangerous weapon, namely, his car. To sustain

these convictions, the Commonwealth had to prove, among other

elements, that "there [was] a touching, however slight," and

that "that touching [was] by means of the weapon." Commonwealth

v. Appleby, 380 Mass. 296, 308 (1980). "[T]he 'touching may be

. . . indirect, as by setting in motion some force or

instrumentality' that causes the victim to be touched, such as

where a defendant . . . intentionally or recklessly drives his

vehicle into a vehicle occupied by the victim." Commonwealth v.

Porro, 458 Mass. 526, 530 (2010), quoting Commonwealth v. Dixon,

34 Mass. App. Ct. 653, 654 (1993).

The defendant contends that there was insufficient evidence

of an indirect touching because the wife had no injuries and did

not testify that she was touched by anything in the car or that

she was moved within her seat when the defendant struck her car

with his. We disagree. While the evidence was not

overwhelming, it was sufficient. The jury could have found that

14
the defendant struck the wife's car while traveling at a high

speed, up to fifty to sixty miles per hour. The defendant's car

had "heavy" front-end damage, and there was steam or smoke

coming from the hood. The jury could have inferred from this

evidence that the defendant hit the wife's car with such force

that she would have been touched, even if only "slight[ly]," by

something in the car such as her seatbelt. Appleby, 380 Mass.

at 308.

The defendant further contends that there was insufficient

evidence that he touched the wife three times, as opposed to

two. The wife testified, however, that the defendant hit her

car "several times" and answered affirmatively to the questions,

"Was it more than twice?" and "Was it more than three times?"

This testimony was sufficient to sustain the three convictions.

In arguing otherwise, the defendant suggests that we cannot

consider the wife's testimony because the jury acquitted him of

the fourth count of assault and battery by means of a dangerous

weapon, showing that they "did not credit [the wife's] claim

that she was touched 'more than three' times." But the jury

could have discredited that claim while still crediting her

testimony that she was touched "more than twice." See

Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978) (jury "may

accept or reject, in whole or in part, the testimony presented

15
to them"). And to the extent the defendant is arguing that the

verdicts are factually inconsistent, any factual inconsistency

is not "a ground for setting aside a conviction" because "the

evidence is sufficient to support [the] conviction[s] on the

count[s] on which the guilty verdict[s] [were] reached"

(quotations and citation omitted). Commonwealth v. Miller, 486

Mass. 78, 94-95 (2020).

4. Reckless operation of a motor vehicle. The defendant

challenges his conviction of reckless operation of a motor

vehicle on the ground that the Commonwealth failed to prove the

element of operation on "a public way." Commonwealth v. Duffy,

62 Mass. App. Ct. 921, 921 (2004). The defendant concedes that

there was sufficient evidence that he drove on a public way

after he left the State Police barracks but contends that,

because no reckless driving occurred after that point, we are

limited to considering what happened before he reached the

barracks. Assuming, without deciding, that this is correct, we

still conclude that the evidence was sufficient to show that the

defendant drove recklessly on a public way. Viewed in the light

most favorable to the Commonwealth, the evidence established

that the defendant pursued the wife in his car at high speeds

through the towns of Randolph, Canton, and Milton. While on the

phone with the 911 dispatcher, the wife stated that she passed

16
two colleges. Where the defendant chased the wife in his car

through three different towns, the jury could have reasonably

inferred that at least part of that chase occurred on a public

way. See Commonwealth v. George, 406 Mass. 635, 637 (1990)

(public way is "place[] to which members of the public have a

right of access by motor vehicle or access as invitees or

licensees by motor vehicle").

5. Threatening to commit a crime. After the defendant's

trial concluded, the United States Supreme Court held in

Counterman, 600 U.S. at 79, that, to convict a person of making

a true threat, the State must prove that the person acted at

least recklessly, meaning, that he was "aware that others could

regard his statements as threatening violence and deliver[ed]

them anyway" (quotations and citation omitted). The jury

instruction here, consistent with the law as it existed before

Counterman, did not require the jury to find that the defendant

was subjectively aware that others could view his statement as

threatening violence.

Despite the omission, the Commonwealth contends that we

should affirm the conviction because it can be ineluctably

inferred that the defendant knew that the wife would view his

statement, "Today is the last day for me to kill you," to be

threatening violence. While this argument is not without force,

17
in Commonwealth v. Cruz, 495 Mass. 110, 113-114 (2024), the

Supreme Judicial Court concluded in similar circumstances that

the omitted Counterman instruction required vacatur of the

defendant's conviction. The court so concluded without

discussing whether the statement in question, "I'll punch you in

your fucking face," gave rise to an ineluctable inference that

the defendant acted with the necessary mens rea. Id. at 112.

Thus, we believe we are constrained under Cruz to vacate the

defendant's conviction.7

7 We see no merit to the defendant's argument that there was
a variance between the indictment and the proof at trial. The
indictment was read at the start of trial; the Commonwealth's
closing argument made clear that the alleged threat was the
defendant's March 18, 2020 statement that it was the last day
for him to "kill" the wife; and there was no evidence of any
other statement that could be construed as a threat to injure
the wife. Thus, as there is no "substantial risk that the
defendant was convicted of a crime for which he was not
indicted," Commonwealth v. Barbosa, 421 Mass. 547, 554 (1995),
the Commonwealth can retry the defendant if it so chooses. See
Cruz, 495 Mass. at 117.

18
Conclusion. The judgment of conviction of threatening to

commit a crime is vacated, and the verdict is set aside. The

remaining judgments are affirmed.

So ordered.

By the Court (Neyman, Shin &
Wood, JJ.8),

Clerk

Entered: April 18, 2025.

8 The panelists are listed in order of seniority.

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