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Commonwealth v. Chonga

Appeals Court of Massachusetts, Middlesex

November 1, 2018

COMMONWEALTH
v.
PETER CHONGA

          Heard: May 2, 2018.

         Threat. Indictments found and returned in the Superior Court Department on May 31, 2012.

         The cases were tried before Mitchell H. Kaplan, J., and a motion for a new trial, filed on July 27, 2015, was considered by him.

          Nelson P. Lovins for the defendant.

          Elizabeth J. May, Assistant District Attorney, for the Commonwealth.

          Present: Rubin, Henry, & Desmond, JJ.

          RUBIN, J.

         The defendant was convicted after a jury trial of stalking in violation of G. L. c. 265, § 43 (a.), and assault and battery in violation of G. L. c. 265, § 13A (a.), [1] He now appeals.

         Background.

         Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury could have found the following. The victim and defendant were married in Malawi and moved to Woburn together in the summer of 2009.[2] Their relationship was initially "good" but then deteriorated. The defendant became, in the victim's words, "controlling" and frequently demanded to check the victim's cellular telephone (cell phone) and electronic mail messages (e-mails). The defendant also became physically "abusive." The victim testified that the defendant "tried to choke" her, using two hands and squeezing her neck, and threatened to kill her, something that, she testified, he threatened to do "all the time."

         In September of 2010, the victim moved into her own apartment in Burlington. Although she did not tell the defendant where she had moved, he first showed up within one or two weeks and continued to go to her apartment about four times per month. She would let him in because "[i]t was embarrassing arguing outside when everybody's seeing you." When the defendant went in, he would check her e-mails and cell phone, and he would telephone her friends and accuse them of sleeping with her. The defendant also would telephone the victim "all the time" -- sometimes up to twenty times in a row and sometimes with blocked numbers -- asking her where she was, and he would follow her. Around April 1, 2011, the defendant entered the victim's apartment, pointed a knife at the victim's neck, and threatened to use it to kill both her and himself. One week later, the defendant again turned up at the victim's apartment uninvited. The victim, understandably not wanting him to be there, lied by stating that she had to go to work. When he discovered that this was a lie, he entered the victim's apartment, took her cell phone and the handset from the home telephone, threatened to kill her, and eventually hit her repeatedly with his boot. The victim managed to escape to a neighbor's house, but not before, by the defendant's own admission, he grabbed her arm while she was running out the door. After the victim escaped, her friend Patrick received calls from the victim's cell phone and home telephone numbers from a man he did not know who cursed at him and refused to tell him the victim's whereabouts. Patrick then called the police and drove to the victim's apartment.

         Discussion.

         The defendant argues that the evidence was insufficient to support his conviction of stalking. The statute provides that "[w]hoever (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking . . . ." G. L. c. 265, § 43 (a).

         The defendant contends first that his repeated intimidating, threatening, and physically violent conduct directed at the victim was not "wilful" because it was not "intentional and by design." Commonwealthv.Peruzzi, 15 Mass.App.Ct. 437, 443 (1983). The defendant argues that this conduct was "motivated by jealousy and anger." Contrary to the implication of his argument, this does not, even if true, indicate that the conduct was not intentional and by ...


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