Commonwealth v. Marcos Gomez.

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

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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

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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.

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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."

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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

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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.

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