Heard: December 4, 2017.
received and sworn to in the Fall River Division of the
District Court Department on December 28, 2015. The case was
tried before Gilbert J. Nadeau, Jr., J.
Supreme Judicial Court granted an application for direct
Christopher DeMayo for the defendant.
L. Michel, Jr., Assistant District Attorney, for the
Present Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
District Court jury convicted the defendant, Joseph Fragata,
of intimidating a witness in violation of G. L. c. 268,
§ 13B, in connection with an incident of alleged
domestic violence. The statute, as relevant here, provides:
"Whoever, directly or indirectly, willfully . . .
attempts or causes physical injury . . . [or] intimidates . .
. another person who is ... a witness or potential witness at
any stage of a criminal investigation, ... or other criminal
proceeding of any type . . . with the intent to impede,
obstruct, delay, harm, punish or otherwise interfere thereby,
or do so with reckless disregard, with such a proceeding
shall be punished . . . ."
G. L. c. 268, § 13B (1) (a.), (c) (i), (v), as amended
through St. 2010, c. 256, § 120. The Commonwealth's
theory at trial was that the defendant violated § 13B
(1) (c) (i) by taking away the alleged victim's cellular
telephone to prevent her from calling 911 for help after he
had verbally assaulted her. On direct appellate review, the
defendant contends primarily that the evidence was
insufficient to sustain his conviction of witness
intimidation under § 13B (1) (c) (i), because no view of
the evidence would have allowed the jury to conclude that he
had committed any crime before he took the victim's
that, to convict a defendant of witness intimidation under
the central provision at issue here, G. L. c. 268, § 13B
(1) (c) (i), the Commonwealth must prove that (1) a possible
criminal violation occurred that would trigger a criminal
investigation or 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, or in
reckless disregard of the impact his conduct would have in
impeding or interfering with that investigation or
proceeding. Applied here, we conclude that the evidence was
insufficient to support the defendant's conviction on the
particular theory argued by the Commonwealth at trial. There
was sufficient evidence to convict the defendant of witness
intimidation based on his conduct after he took the
victim's cellular telephone. But this alternative ground
was not argued by the Commonwealth, and we have no way of
knowing whether the jury based their verdict on this
alternative ground, for which the evidence was sufficient to
convict, or on the theory argued by the Commonwealth, for
which the evidence was insufficient to convict. Accordingly,
We summarize the evidence in the light most favorable to the
Commonwealth, reserving certain details for later discussion.
Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979) .
victim and the defendant met in May, 2014, and developed a
romantic relationship. On Christmas Day, 2015, the victim and
the defendant hosted a small gathering in the apartment where
the two were living. After their guests left, the defendant
screamed at the victim and called her "nasty
names." The victim began to cry and told the defendant
that she was going to telephone 911. The defendant