Commonwealth v. Johnson

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SJC-11660

COMMONWEALTH vs. WILLIAM P. JOHNSON
(and a companion case1).

Essex. September 3, 2014. - December 23, 2014.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Criminal Harassment. Constitutional Law, Freedom of speech and
press. Practice, Criminal, Required finding, Discovery,
Disclosure of evidence, Loss of evidence by prosecution,
Promise by prosecutor, Argument by prosecutor, Speedy
trial, Venue. Evidence, Authentication.

Complaints received and sworn to in the Lawrence Division
of the District Court Department on October 16, 2008.

Motions to dismiss were heard by Anthony P. Sullivan, J.,
Mark A. Sullivan, J., and James D. Barretto, J.; and the cases
were tried before Michael A. Uhlarik, J.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Robert S. Sinsheimer (Lisa A. Parlagreco & Ronald J. Ranta
with him) for William P. Johnson.
Valerie A. DePalma (Susan H. McNeil with her) for Gail M.
Johnson.

1
Commonwealth vs. Gail M. Johnson.
 2

David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
Daniel J. Lyne & Theodore J. Folkman, for Eugene Volokh,
amicus curiae, submitted a brief.

CORDY, J. This case concerns the constitutionality of the

criminal harassment statute, G. L. c. 265, § 43A (a), and its

application to acts of cyberharassment among others.

Specifically, we consider whether a pattern of harassing conduct

that includes both communications made directly to the targets

of the harassment and false communications made to third parties

through Internet postings solely for the purpose of encouraging

those parties also to engage in harassing conduct toward the

targets can be constitutionally proscribed by the statute. We

also consider whether, to the extent that this pattern of

conduct includes speech, that speech is protected by the First

Amendment to the United States Constitution or is unprotected

speech integral to the commission of the crime.

The defendants, William and Gail Johnson, were both

convicted of criminal harassment. William2 was also convicted of

making a false, or "frivolous," report of child abuse, G. L.

c. 119, § 51A (c). Among other things, the defendants' conduct

included posting information about the victims online along with

2
The defendants and the victims are both married couples.
Where appropriate the defendants and the victims are referred to
by their first names given the common last name between each
married couple.
 3

false statements about items that the victims allegedly either

had for sale or were giving away, with the object of encouraging

unwitting third parties to repeatedly contact and harass the

victims at their home and on their telephone. The defendants

also anonymously sent hostile and ominous communications

directly to the victims.

William claims that the criminal harassment statute is

facially unconstitutional, arguing that it regulates protected

speech and does not provide sufficient notice of the type of

conduct that is proscribed. Additionally, both defendants argue

that the statute is unconstitutional as applied to their conduct

because they did not engage in "fighting words," an unprotected

category of speech that we held could be constitutionally

proscribed under the statute in Commonwealth v. Welch, 444 Mass.

80 (2005), abrogated on another ground by O'Brien v. Borowski,

461 Mass. 415 (2012).3 Further, both defendants contend that

their conduct did not meet the statutory requirements because

their actions were not actually directed at the victims and

there was inadequate evidence that their conduct caused any

serious alarm to the victims. We conclude that the Legislature

drafted a sufficiently specific statute that is not

unconstitutional on its face; that the defendants' conduct

3
We acknowledge the amicus brief submitted by Eugene
Volokh.
 4

included speech that was not protected by the First Amendment,

but rather was integral to criminal conduct; and, accordingly,

that the statute is not unconstitutional as applied to the

defendants. We also conclude that the defendants' conduct as

established at trial met all of the statutory requirements for a

guilty verdict.

Background. We summarize the facts that the jury could

have found, reserving certain details for our analysis of the

issues raised on appeal. The victims, James "Jim" J. Lyons,

Jr., and his wife, Bernadette, have lived on the same street as

the defendants in Andover since around 2000. In 2003, the

defendants acquired a tract of land abutting the Lyonses'

property and intended to subdivide and develop it. The Lyonses,

along with other neighbors, objected to the proposed development

and years of litigation ensued between the parties. By 2008,

the relationship between the families had become strained and

communication between them was infrequent.

Gerald Colton, a childhood friend of the Johnsons, did not

know the Lyons family prior to 2008. Throughout the 1990s and

early 2000s, William hired Colton to work as a handyman on an

hourly basis and to identify lots for potential real estate
 5

development. If William later developed a lot Colton had

identified, Colton would collect a finder's fee.4

In either late February or early March, 2008, William

telephoned Colton and enlisted him to play a series of "pranks"

on Jim. The ideas for these "pranks" were generated in several

ways: (1) William would directly instruct Colton or convey

ideas through Gail; (2) the Johnsons would provide information

about the Lyons family to Colton so that he could use this

information to harass them; or (3) the Johnsons would prompt

Colton to think of ideas.

Over the course of thirty-five days in late March and early

April, 2008, the defendants, directly and through Colton,

engaged in a series of acts directed at the Lyons family. The

Commonwealth alleged four separate acts of harassment in

addition to the false report of child abuse, and Colton was

called as its key witness at the trial.

The first alleged act occurred on March 18, 2008, when

Colton posted from his computer an advertisement that appeared

on the Internet site "Craigslist." The advertisement provided

the Lyonses' home telephone number and address and stated that

4
Gerald Colton identified lots for William Johnson by
placing his initials next to vacant lots on the sheets of the
town of Andover's board of assessors. At trial, Colton admitted
that his initials appeared to be next to the lot that later
became the focus of litigation between the Johnsons and the
Lyonses, but suggested that the initials had been forged.
 6

there were free golf carts available at this location on a

"first come, first serve" basis. The Lyonses did not own any

golf carts and had never used Craigslist. When Bernadette

arrived home at 2:30 P.M. that same day, there were strangers in

both her driveway and on the street near her home. These

individuals informed her about the advertisement and explained

that they were looking for golf carts. In total, about thirty

to forty people arrived at the Lyonses' house that afternoon,

causing Bernadette to be "scared" and "fearful."

When Jim arrived home later that evening, he telephoned the

police, as Bernadette was in a state of "uneasiness" and Jim

felt the incident was "really unusual" and "bizarre." Andover

police Sergeant Chad Cooper responded and advised Jim to contact

Craigslist to remove the advertisement and get the Internet

protocol address for the computer that posted it. In Sergeant

Cooper's presence, Jim received numerous telephone calls from

people inquiring about the golf carts. When William learned

that the Craigslist advertisement had been removed, he asked

Colton to "put it back up" and Colton complied. After

reposting, Colton testified that he and William "laughed" about

it and Colton said that he would post another advertisement.

The second alleged act occurred on March 19, when Colton

posted a different Craigslist advertisement, selling "my late

son's" motorcycle and directing interested parties to call Jim
 7

on his cellular telephone after 10 P.M.5 Colton then told

William about the posting. That night, Jim received "non-stop"

telephone calls regarding the advertisement, approximately

twenty every ten minutes. Sergeant Cooper responded again.

These late night calls continued for months after the posting.

The third alleged act occurred one week later on March 26,

when Colton sent an electronic mail message (e-mail) to the

Lyonses from a fictitious account. The subject of the e-mail

read, "It's just a game for me," and the text stated, "Let The

Games Begin!" The e-mail contained Jim and Bernadette's

personal identifying information, including names, home

telephone number and address, social security numbers, e-mail

address, bank name and location, and Jim's date of birth and

cellular telephone number. At the bottom, the e-mail stated:

"Remember, if you aren't miserable, I aint happy! Let's Play."

Colton testified that Gail had sent him an e-mail with the

Lyonses' personal information.

The following evening, William arrived at Colton's home and

told Colton that he wanted to call and "turn [Jim] in." William

had a piece of paper with a hotline telephone number written on

it and proceeded to use Colton's home telephone to call the

Department of Children & Families (DCF) to file a false report

alleging child abuse by Jim. William later telephoned Colton to

5
Neither Jim nor Bernadette had a son who had passed away.
 8

report that a police cruiser and another vehicle were at the

Lyonses' home.6

Investigator Carrie Riley of the DCF testified that an

after-hours "child abuse hotline" had received a call from

someone using fictitious information and reporting that Jim was

physically abusing his son. Riley and another investigator

arrived at the Lyonses' home at 10:30 P.M. and said they had to

examine their son. Jim testified that he and Bernadette were

"panicked" and "frightened," but that, acting on the advice of

their attorney, he awakened their son and permitted Riley to

inspect him. Riley examined his body for marks and bruises.

The DCF case was closed as the son denied any abuse and the

investigators found no signs of it.

The fourth alleged act occurred on April 3, 2008, when

Colton sent another anonymous e-mail to the Lyonses from another

fictitious e-mail account. The subject line was "Brian," and

the text read, "What have you done James? . . . or . . . Why

James? You stole the innocence of a young man." Shortly

thereafter, Jim received a letter by postal mail purportedly

sent from an individual named "Brian." Brian claimed to have

worked for Jim when he was fifteen years of age, accused Jim of

sexually molesting him as a teenager, and threatened to press

6
The jury were instructed that this alleged conduct was to
be considered only in connection with the false report charge
(G. L. c. 119, § 51A [c]) and not the harassment charge.
 9

charges against him. Colton testified that William told Colton

that he had sent the letter.7 Even though the allegations were

false, reading the letter was "very tough" and "absolutely

alarmed [Jim]."

Throughout this entire time period, Colton consistently

kept in contact with both defendants, letting them know what he

was doing or had done to the Lyons family. William and Gail

acquiesced to Colton's conduct and encouraged him to do more.

Procedural history. Police traced the relevant Internet

activity back to Colton, who was charged on June 5, 2008, with

stalking and identity fraud. Colton spent seventeen days in

jail before posting bail. On August 14, 2008, Colton made a

statement taking responsibility for the Internet postings and e-

mails and implicating the defendants in the scheme.

The Johnsons were charged on October 16, 2008, in Lawrence

District Court with making a false report of child abuse (G. L.

c. 119, § 51A [c]); identity fraud (G. L. c. 266, § 37E);

conspiracy (G. L. c. 274, § 7); and criminal harassment (G. L.

c. 265, § 43A [a]). Colton entered into a written plea

7
On cross-examination, Colton acknowledged that, in a 2008
statement, he told police that William showed him a copy of this
letter in person while meeting with him somewhere near the
Andover office of the Internal Revenue Service, and that, in a
2010 statement, he stated that William had called him and read
aloud a "sick letter" that he had already sent to Jim.
 10

agreement with the Commonwealth in exchange for his testimony

against the Johnsons.

During pretrial proceedings, the defendants filed motions

to dismiss, asserting that (1) the Commonwealth failed to

provide discovery; (2) there was no probable cause that the

defendants had committed any crime; (3) the destruction of

evidence caused by the Commonwealth warranted dismissal; (4) the

defendants' right to a speedy trial was violated; (5) venue for

the charge of making a false report was improper; and (6) there

was prosecutorial misconduct. All of these motions were denied.

At the close of the Commonwealth's case, the Johnsons moved

for required findings of not guilty on all of the charges. The

judge entered a finding of not guilty on the charge of identity

fraud, but denied the defendants' motion in all other respects.

The judge also denied the defendants' motion at the close of all

of the evidence. The charge of conspiracy was dismissed at the

Commonwealth's request.

On December 1, 2011, a jury convicted the defendants of

criminal harassment and convicted William of making a false

report of child abuse. On the harassment charge, William was

sentenced to two and one-half years in the house of correction,

eighteen months to be served with the balance suspended until

December 1, 2014, with probation conditions; on the charge of

making a false report of child abuse, he was fined $1,000. Gail
 11

was sentenced to two years in the house of correction, six

months to be served with the balance suspended until December 1,

2014, with probation conditions, and fined $1,000. We

transferred the defendants' appeal to this court on our own

motion.

Discussion. On appeal, the defendants make multiple claims

of error regarding the Commonwealth's compliance with discovery

rules, alleged prosecutorial misconduct, choice of venue,

evidentiary rulings at trial, the sufficiency of the evidence,

statements made in closing argument, and the right to a speedy

trial. We conclude that the judge's rulings were correct and

these claims are without merit.

We begin, however, with a discussion of the defendants'

challenges to the constitutionality of G. L. c. 265, § 43A (a)

(§ 43A [a]), both facial8 and as applied to them. Such

constitutional challenges are questions of law that we review de

novo. Commonwealth v. Martin, 467 Mass. 291, 301 (2014).

A criminal conviction under § 43A (a) requires proof that

"(1) the defendant engaged in a knowing pattern of conduct or

speech, or series of acts, on at least three separate occasions;

(2) the defendant intended to target the victim with the

harassing conduct or speech, or series of acts, on each

occasion; (3) the conduct or speech, or series of acts, were of

8
Only William raises a facial claim on appeal.
 12

such a nature that they seriously alarmed the victim; (4) the

conduct or speech, or series of acts, were of such a nature that

they would cause a reasonable person to suffer substantial

emotional distress; and (5) the defendant committed the conduct

or speech, or series of acts, 'willfully and maliciously'"

(citations omitted). Commonwealth v. McDonald, 462 Mass. 236,

240 (2012).

Although this court has previously construed the criminal

harassment statute, it has not yet considered its application to

the type of conduct at issue here. An analysis of whether the

defendants' actions amounted to criminal harassment necessarily

includes the consideration whether their conduct satisfied the

statutory requirements and whether they engaged in

constitutionally protected speech.

1. Facial challenge. William argues that § 43A (a) is

both unconstitutionally overbroad and vague. He contends that

the statute is dangerously susceptible of application to

constitutionally protected speech and is so vague that it leaves

the public uncertain as to the conduct it prohibits. His

challenge fails on two accounts.

First, the claim is raised for the first time on appeal,

and consequently is waived. See Commonwealth v. Dockham, 405

Mass. 618, 632-633 (1989). Although, as the defendant notes in

his reply brief, we are nevertheless not prevented from
 13

considering his claim, we "rarely exercise[]" this power and

only do so in instances where a "serious and obvious" mistake

poses a "substantial risk of a miscarriage of justice."

Commonwealth v. Oakes, 407 Mass. 92, 94-95 (1990).

Second, the challenge fails because the statute is neither

overbroad nor vague. William bears the burden of showing "'from

the text of [the law] and from actual fact' . . . that

substantial overbreadth exists" (citation omitted). Virginia v.

Hicks, 539 U.S. 113, 122 (2003). As an initial matter,

§ 43A (a) is a statute directed at a course of conduct, rather

than speech, "and the conduct it proscribes is 'not necessarily

associated with speech'" (citation omitted). United States v.

Petrovic, 701 F.3d 849, 856 (8th Cir. 2012) (considering similar

statute). In particular, § 43A (a) specifically criminalizes "a

knowing pattern of conduct or series of acts . . . directed at

a specific person, which seriously alarms that person and would

cause a reasonable person to suffer substantial emotional

distress" (emphases added). As the United States Court of

Appeals for the Ninth Circuit held in United States v. Osinger,

753 F.3d 939, 944 (9th Cir. 2014), when considering a similar

statute, because § 43A (a) "proscribes harassing and

intimidating conduct, the statute is not facially invalid under

the First Amendment."
 14

Further, as the statute requires both malicious intent on

behalf of the perpetrator and substantial harm to the victim,

"it is difficult to imagine what constitutionally-protected

speech would fall under these statutory prohibitions." Id.,

citing Petrovic, 701 F.3d at 856. Contrary to William's claim,

the statutory elements such as "seriously alarms" "are not

esoteric or complicated terms devoid of common understanding."

Osinger, supra at 945. Rather, these elements are similar to

those that have led courts in other jurisdictions to uphold

their criminal harassment statutes as constitutionally

permissible. See, e.g., State v. Brown, 207 Ariz. 231 (Ariz.

Ct. App. 2004); Bouters v. State, 659 So. 2d 235 (Fla.), cert.

denied, 516 U.S. 894 (1995).

Together the component parts of the statute provide

adequate notice and safeguards to prevent its application to

protected speech. Contrary to William's claim that the statute

leaves it to the hearer of the speech to determine what conduct

is criminal, the Commonwealth must prove that a defendant knew

he or she was engaged in a pattern of conduct that intentionally

targeted a victim for the purpose of harassment with acts of

such a nature that they would cause a reasonable person to

suffer substantial emotional distress. This scienter

requirement undermines William's claim that he could be liable

under § 43A (a) if his actions were accidental and that putative
 15

harassers are at the mercy of a hearer's sensitivities.

Moreover, William has offered no meaningful evidence to show

that the statute has a real and substantial deterrent on

protected speech or that it actually denies fair notice of what

conduct is proscribed. The required elements are clearly

delineated such that § 43A (a) leaves no putative harassers

wondering what is prohibited. Accordingly, William's facial

challenge to § 43A (a) fails.

2. As-applied challenge. The defendants' as-applied

constitutional challenge also fails because the conduct in

question was not protected speech, but rather a hybrid of

conduct and speech integral to the commission of a crime.

Accordingly, § 43A (a), as applied to the defendants, does not

implicate constitutionally protected speech rights.

"[I]t has never been deemed an abridgment of freedom of

speech or press to make a course of conduct illegal merely

because the conduct was in part initiated, evidenced, or carried

out by means of language, either spoken, written, or printed."

United States v. Sayer, 748 F.3d 425, 433 (1st Cir. 2014),

quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502

(1949). The defendants do not claim that creating fictitious

Internet postings and sending a letter falsely accusing someone

of a crime constitute legal conduct. Their conduct served

solely to harass the Lyonses by luring numerous strangers and
 16

prompting incessant late-night telephone calls to their home by

way of false representations, by overtly and aggressively

threatening to misuse their personal identifying information,

and by falsely accusing Jim of a serious crime. Where the sole

purpose of the defendants' speech was to further their endeavor

to intentionally harass the Lyonses, such speech is not

protected by the First Amendment. "The [F]irst [A]mendment does

not provide a defense to a criminal charge simply because the

actor uses words to carry out his illegal purpose." United

States v. Barnett, 667 F.2d 835, 842 (9th Cir. 1982).

In this respect, we are guided by the reasoning of the

United States Supreme Court and several circuit courts of the

United States Court of Appeals. In Giboney, 336 U.S. at 498,

cited with approval in United States v. Stevens, 559 U.S. 460,

468-469 (2010), the United States Supreme Court held that speech

or writing used as an integral part of conduct in violation of a

valid criminal statute is not protected by the First Amendment.

Following the holding in Giboney, in Sayer, the United States

Court of Appeals for the First Circuit held that the defendant's

posting of fictitious Craigslist advertisements to induce

anonymous third parties seeking casual sexual encounters to

harass the victim amounted to unprotected speech integral to the

criminal conduct proscribed by the Federal cyberstalking
 17

statute, 18 U.S.C. § 2261A (2012 & Supp. I 2013).9 748 F.3d at

433-434.

Similarly, in Petrovic, 701 F.3d at 854-856, the United

States Court of Appeals for the Eighth Circuit concluded that

§ 2261A was properly applied to a defendant who created a Web

site with links to images of the victim nude or engaged in sex

acts with him, where the sole purpose of the communications was

to carry out the defendant's threats to harass and humiliate the

victim if she ended their sexual relationship. As integral to

the commission of the crime of cyberstalking, the defendant's

communication, although speech, fell outside the purview of the

First Amendment.

The speech here, much as the speech at issue in Giboney,

Sayer, and Petrovic, was also "integral to criminal conduct,"

serving only to implement the defendants' purpose to harass and

cause substantial emotional distress to the Lyonses in violation

9
Section 2261A(2) of 18 U.S.C. (2012 & Supp. I 2013)
defines cyberstalking, in relevant part, as follows: "Whoever -
- with the intent to kill, injure, harass, intimidate, or place
under surveillance with intent to kill, injure, harass, or
intimidate another person, uses the mail, any interactive
computer service or electronic communication service or
electronic communication system of interstate commerce, or any
other facility of interstate or foreign commerce to engage in a
course of conduct that . . . causes, attempts to cause, or would
be reasonably expected to cause substantial emotional distress
to . . . [that person], [an immediate family member of that
person] or [a spouse or intimate partner of that person], shall
be punished as provided in [§] 2261(b) of this title" (emphases
added).
 18

of § 43A (a).10 The defendants point to no lawful purpose of

their "communications" that would take them outside of the

exception delineated in Giboney. To the extent that any of the

harassing contacts were composed of words, they were used "so

close in time and purpose to a substantive evil as to become

part of the ultimate crime itself." United States v. Freeman,

761 F.2d 549, 552 (9th Cir. 1985), cert. denied, 476 U.S. 1120

(1986). In such instances, "where speech becomes an integral

part of the crime, a First Amendment defense is foreclosed."

Id. While the content of the speech in question certainly

affected the Lyonses, much of the alarming impact was the

product of the frightening number, frequency, and type of

harassing contacts with which the defendants bombarded the

Lyonses. In these circumstances, the application of § 43A (a)

to the defendants fully withstands constitutional scrutiny.11

10
The Commonwealth also argues that the speech here is
"speech that unjustifiably invades privacy." We agree with the
defendants, however, that there is no criminal invasion of
privacy statute in Massachusetts. This ultimately proves
irrelevant given our holding that the speech at issue falls
under another category of speech not subject to First Amendment
protection.
11
We disagree with the defendants' contention that their
conviction for criminal harassment rests solely on incidents of
pure speech. In Commonwealth v. Welch, 444 Mass. 80, 86-87
(2005), we noted that courts have long recognized that speech
and conduct "frequently overlap and may be incapable of precise
differentiation" and that "the criminal harassment statute was
intended to proscribe harassing conduct encompassing 'speech.'"
It is apparent that cyberharassment will consistently involve a
 19

Nonetheless, the defendants attempt to argue that they are

entitled to a required finding of not guilty on the criminal

harassment charge because none of their speech constituted

"fighting words," which they contend was the only form of speech

punishable at the time of the offense under our interpretation

of the statute in Welch. See generally 444 Mass. at 93-100.

This argument is meritless. While the focus of our decision in

Welch was centered on the "fighting words" doctrine, we

expressly noted that "[a]ny attempt to punish an individual for

speech not encompassed within the 'fighting words' doctrine (or

within any other constitutionally unprotected category of

speech) would of course offend our Federal and State

Constitutions" (emphasis added). Id. at 99. These well-defined

and limited categories of speech "are not protected because they

are 'no essential part of any exposition of ideas, and are of

such slight social value as a step to truth' that whatever

meager benefit that may be derived from them is 'clearly

outweighed' by the dangers they pose." Borowski, 461 Mass. at

422, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572

hybrid of speech and conduct. There is content within the
communications, but the very act of using the Internet as a
medium through which to communicate implicates conduct. In
Welch, supra at 99 n.15, we did "not suggest that incidents of
harassment that consist of more than pure speech should be
exempted from punishment." Here, the conduct and speech
together "constituted a single and integrated" course of action
in violation of a valid law. See Giboney v. Empire Storage &
Ice Co., 336 U.S. 490, 498 (1949).
 20

(1942). Speech integral to criminal conduct is one such long-

standing category that is constitutionally unprotected, directly

applicable to the defendants' conduct here, and permissibly

proscribed by § 43A (a).12 Accordingly, the denial of the

defendants' motion for a required finding of not guilty on the

basis that they engaged in protected First Amendment activity

was not error.

3. Sufficiency of evidence. The defendants contend that

there was insufficient evidence of their joint venture to

criminally harass the victims, arguing that both the "directed

at" and "seriously alarms" prongs of the statute were not met.

In reviewing the sufficiency of the evidence, we consider the

facts in the light most favorable to the Commonwealth, see

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), and

determine whether any rational trier of fact could have found

beyond a reasonable doubt all of the statutory elements.

12
To the extent that the defendants read our holding in
O'Brien v. Borowski, 461 Mass. 415 (2012), to establish the
principle that no constitutionally unprotected category of
speech can be proscribed under G. L. c. 265, § 43A (a), unless
we have explicitly articulated so in a previous case, they are
misguided. We broadened the scope of our § 43A (a) analysis to
expressly include true threats in Borowski only because we had
specifically stated that the true threats exception did not
apply in the § 43A (a) context in Welch, 444 Mass. at 94 n.14.
Consequently, clarification was needed in Borowski that is not
needed for other unprotected categories of speech that have
never been explicitly exempted from the application of § 43A
(a).
 21

a. "Directed at" prong. Section 43A (a) requires that the

Commonwealth prove three or more predicate acts of harassment

that were "directed at a specific person." See McDonald, 462

Mass. at 240. The defendants argue that the Craigslist postings

(two of the four acts supporting the harassment charge) were not

directed at the victims, but were merely directed at the general

public.

This argument is without merit. As a factual matter, the

jury clearly could have concluded that the "directed at" prong

was met. While the defendants' methods were indirect, the false

information in the Craigslist postings was intended solely to

ensure that the victims were harassed as a consequence by

unwitting third parties contacting them at all hours of the

night by telephone and showing up at their home. Essentially,

the "sole immediate object" of the false advertisements was to

create a marketplace for the guaranteed harassment of the

victims. See Giboney, 336 U.S. at 498.

The defendants cite to Welch for the contention that

statements made to a third party are not speech directed at a

specific person. 444 Mass. at 92-93 (shouting abusive epithets

in one's apartment and speaking in normal tone of voice to third

party outside does not satisfy requirements of § 43A [a]). The

defendants' acts in the instant case are appreciably different

than those at issue in Welch. The Craigslist postings were the
 22

equivalent of the defendants recruiting others to harass the

victims and the victims alone. The causation link is satisfied.

The defendants cannot launder their harassment of the Lyons

family through the Internet to escape liability.

b. "Seriously alarms" prong. Section 43A (a) also

requires the Commonwealth to prove that the acts of alleged

harassment "seriously alarm[ed]" the victims. The serious alarm

required under § 43A (a) is a "demanding, subjective element of

harm" that must be satisfied by a victim's testimony rather than

conjecture. Commonwealth v. Braica, 68 Mass. App. Ct. 244, 247

(2007). The defendants argue that (1) the Commonwealth offered

insufficient proof that the victims were seriously alarmed, and

(2) the victims did not experience serious alarm separately for

each act, as required, rather than cumulatively as the result of

the pattern of harassing acts. We disagree with both

contentions.

First, the Lyonses' subjective feelings of fear and anxiety

were actual (not hypothetical), significant, and well documented

at trial. As a general matter, Jim and Bernadette testified

that they felt "bombarded," "attacked," and "very frightened"

throughout the ordeal. Jim described the thirty-five-day

"odyssey" in which the defendants would "torture [them],"

stating that he was concerned about the safety of his family and

himself: "The[y] attacked my business. They attacked my
 23

family. And they tried to take my kids away from me."

Bernadette described the situation as "very traumatic," stating

that her family was in a "siege mentality where [e]very day

something was happening so [they] got afraid." The Lyonses were

sufficiently alarmed to call the police "right away" after the

very first harassing act. Jim testified that the second act

"stepped it up a notch" and made him feel "[t]errible," and that

the correspondence that he received alleging sexual molestation

was "very tough" and "absolutely alarmed" him. The police took

notice of and corroborated Jim's testimony that the defendants'

conduct took a substantial emotional toll on him.

The Lyonses' testimony of feeling frightened, tortured, and

attacked more than meets the "seriously alarms" standard. The

victims testified to an abundance of distressing and alarming

conduct that amounted to a serious invasion of their emotional

tranquility. Unlike the victims in Commonwealth v. Kessler, 442

Mass. 770, 773-774 (2004), who offered no proof that they were

"actually 'alarmed or shocked,'" but rather just "offended" by

the defendant's indecent exposure, the Lyonses testified to

having a level of fear and anxiety similar to the victims in

Commonwealth v. Robinson, 444 Mass. 102, 105, 108 (2005)

(serious alarm requirement met where, as result of harassment,

victim felt vulnerable, son's grades dropped due to nervousness,

and family felt constantly under surveillance). See
 24

Commonwealth v. O'Neil, 67 Mass. App. Ct. 284, 294 (2006)

(defendant's letters and telephone calls seriously alarmed

victim who felt "concern[ed]" and "very scared," and asked State

officials for assistance). Here, the Lyons family did not

merely experience uneasiness associated with day-to-day living,

but rather, as the ominous and hostile acts perpetrated by the

defendants continued to escalate, the totality of the situation

evoked the type of "serious negative emotional experience"

required under the statute. Kessler, supra at 774.

As for whether serious alarm must be shown for each

individual act or may be measured cumulatively, we conclude that

the statute's wording ties the requirement to the over-all

pattern of conduct. The statutory language of § 43A (a)

requires that the "pattern of conduct" or "series of acts"

"seriously alarms." As a general rule of statutory

construction, "words importing the plural number may include the

singular." G. L. c. 4, § 6, Fourth. Accordingly, "acts" might

refer to a single act as well as multiple acts. However, the

rules of grammar and proper subject-verb agreement instruct a

reading of "alarms" to modify the singular noun of one "pattern"

or one "series," rather than the noun "acts."13 The evidence at

13
Other States have also held that in similar criminal
statutes where the actus reus of the crime is defined as a
"series of acts," each act need not induce fear. See, e.g.,
 25

trial was sufficient to support the verdict rendered by the

jury.

4. Pretrial motions. In three joint motions before the

trial court, the defendants unsuccessfully asked for the case to

be dismissed, alleging prosecutorial errors that caused undue

delay and prejudice. Specifically, they contended that

dismissal was appropriate based on the Commonwealth's "loss" of

Colton's telephone records and the Commonwealth's delayed

disclosure of (1) promises, rewards, and inducements made to

Colton in exchange for his cooperation; (2) Colton's statements

regarding the location of the DCF call; and (3) a diary that

Colton kept.

While the Commonwealth has a duty to disclose all material,

exculpatory evidence in its possession, see Brady v. Maryland,

373 U.S. 83, 87 (1963); Commonwealth v. Tucceri, 412 Mass. 401,

404-405 (1992), we agree with the motion judge that the

Commonwealth did not withhold any such evidence here and that

delays in disclosure did not result in prejudice.

Colton's telephone records were potentially significant to

the case because they could corroborate (or not) that a call was

made from his telephone to the DCF hotline falsely reporting

child abuse, and was not made from William's telephone. In

Cook v. State, 36 P.3d 710, 721 (Alaska Ct. App. 2001); People
v. Payton, 161 Misc. 2d 170, 173-176 (N.Y. Crim. Ct. 1994).
 26

November, 2009, the Commonwealth subpoenaed these records from

Verizon and was notified that Colton's correct telephone service

provider was Comcast. However, it was not until June of 2010

that the prosecutor attempted to obtain Colton's records from

Comcast. By then, the subpoenaed records were no longer

available as they were outside the company's retention period.

The defendants argue that this "loss" of records was prejudicial

to their defense strategy. We agree that the Commonwealth could

have and should have attempted to obtain Colton's telephone

records earlier, but, ultimately, these records would not have

provided any exculpatory information and their "loss" was not

prejudicial. The Commonwealth had already disclosed the DCF

hotline records to the defendants, which identified the

telephone number of the caller as Colton's, thus establishing

that a call was made to DCF from Colton's telephone number, not

William's, precisely what Colton's telephone records would have

established. Further, the defendants had considerable

opportunity and bases for cross-examining Colton even without

his telephone records, "'effectively' remov[ing]" any prejudice

(citation omitted). Commonwealth v. Molina, 454 Mass. 232, 236-

237 (2009).

Regarding promises, rewards, and inducements, well before

trial, the prosecutor acknowledged Colton's preliminary

discussions with the government. Once an agreement was
 27

formalized on September 22, 2010, the prosecutor properly

disclosed its terms and filed a discovery packet including all

of the Commonwealth's documents. See Commonwealth v. Burgos,

462 Mass. 53, 62-63, cert. denied, 133 S. Ct. 796 (2012)

(prosecutor informed defendant before trial of formalized

cooperation agreements). Until the agreement was formalized,

Colton received no promises, rewards, or inducements that the

Commonwealth was obligated to disclose.

With respect to the Commonwealth's delayed disclosure of a

later statement Colton made about the DCF call, we disagree with

the defendants that this statement was a critical change in his

story. In his initial statement to the police, Colton did not

provide specific information about the location from which the

DCF telephone call was made, and, later, Colton asserted that

William had made the call from Colton's home telephone. The

defendants had adequate notice of this assertion in the

Commonwealth's bill of particulars, a supplemental police

report, and Colton's follow-up interview report. The

information was provided long before trial, permitting ample

time for the defense to weave it into its over-all strategy and

counsel's cross-examination of Colton. See Commonwealth v.

Baldwin, 385 Mass. 165, 175 (1982) ("disclosure was sufficiently

timely to allow the defendant 'to make effective use of the
 28

evidence in preparing and presenting his case'" [citation

omitted]).

Regarding the alleged delay in disclosing Colton's diary,

the prosecutor promptly disclosed it to the defendants on

learning of its existence in May, 2011, again, well before

trial. This provided the defendants with a sufficient

opportunity to investigate its contents and conduct a meaningful

cross-examination of Colton.

Finally, the defendants' due process rights were adequately

protected given the defendants' unhampered ability to

extensively cross-examine Colton and the jury's instruction to

carefully weigh his testimony. The defendants have not

demonstrated that any delays in receiving information

legitimately prejudiced their opportunity to effectively prepare

their defense.

5. Venue. During pretrial proceedings and prior to jury

empanelment, William moved for dismissal of the charge of making

a false report of child abuse, asserting lack of jurisdiction

and improper venue under G. L. c. 277 § 57A.14 He argued that

since the telephone call to DCF (located in Suffolk County) was

made from Colton's home (in Middlesex County), the charge should

14
As only William was convicted of making a false report,
Gail does not raise this argument on appeal.
 29

have been tried in either Suffolk or Middlesex County. The

motion was denied.

Article 13 of the Massachusetts Declaration of Rights

grants the Legislature "discretion . . . to establish venue

requirements for criminal trials," Opinion of the Justices, 372

Mass. 883, 897 (1977), but acknowledges "that fairness to a

defendant normally requires that the defendant not be

transported far away for trial but rather be tried where there

is access to witnesses and evidence for the defense."

Commonwealth v. Brogan, 415 Mass. 169, 174 (1993). Since the

statute at issue, G. L. c. 119, § 51A (c), does not include a

venue provision, the question of venue here "is one of common

law within any limitation that art. 13 may impose." Brogan,

supra at 173.

The defendant has made no showing that the trial in Essex

County "was in any way prejudicial to [his] defences on the

merits, or otherwise disadvantageous to [him]." Commonwealth v.

Libby, 358 Mass. 617, 620 n.2 (1971). It is not as though the

crime is unrelated to Essex County: William lived in Essex

County, as did the victims, and the child abuse investigation

became fully manifested there. William has not demonstrated

that he was "unduly hampered by being required to appear" in
 30

Essex County. Commonwealth v. Adelson, 40 Mass. App. Ct. 585,

589 (1996).15

6. E-mail authentication. The defendants moved in limine

on the first day of trial to exclude e-mail correspondence

between Gail and Colton, arguing that the circumstances were

insufficient to permit authentication or confirm Gail's identity

as the sender. During voir dire on the issue, Colton testified

that the defendants shared a joint e-mail account with which he

had exchanged many friendly e-mails for nearly a decade.

Regarding the proposed evidence, Colton testified that he

understood these e-mails to be from Gail, on William's behalf,

as they were sent after William had enlisted Colton in the

scheme, were signed using Gail's typical signature, and

referenced Colton's responses to inquiries about the harassment

scheme.16 The judge ruled that the preponderance of the evidence

authenticated the e-mails and laid a foundation for their

admissibility. We agree.

15
As we are not reversing William's harassment conviction,
there is no need to address his related argument that any
"prejudicial spillover" from evidence introduced in support of
that charge would require a new trial on the false report
charge.
16
These inquiries included references to Craigslist
postings, a telephone conversation between Colton and Gail, the
Lyonses' personal identifying information, and "Mr. Meany,"
which Colton understood to be Gail's way of referencing Jim.
 31

"Evidence may be authenticated by direct or circumstantial

evidence, including its '[a]ppearance, contents, substance,

internal patterns, or other distinctive characteristics.'"

Commonwealth v. Purdy, 459 Mass. 442, 447-448 (2011), quoting

Mass. G. Evid. § 901(b)(4) (2013). The voir dire of Colton

presented sufficient evidence that some of the e-mails sent to

Colton were authored by Gail given the long-standing

relationship between Colton and the defendants, the defendants'

prior use of the e-mail address at the time of the scheme, and

the referencing of the harassing acts in the e-mails.17

7. Closing argument. In summarizing the evidence for the

jury, the prosecutor stated: "Now, how in the world can the

Johnsons explain to you why . . . ." William argues on appeal

that this statement could be interpreted as a comment on the

defendants' failure to take the stand. Viewed in context, the

prosecutor's rhetorical question was merely an attempt to

illustrate the point that the defendants' conduct could not be

reconciled with their defense. It was a "fair, unemotional

response to defense counsel's argument," grounded in both the

17
These electronic mail messages (e-mails) (in addition to
telephone conversations between Gail and Colton) were also
sufficient to establish that Gail knowingly participated in the
harassing conduct with the same malicious intent as her husband.
Accordingly, the evidence of Gail's involvement as a joint
venturer in the scheme was sufficient to survive a motion for a
required finding of not guilty. The judge's ruling to this
effect was not in error.
 32

evidence and its reasonable inferences. See Commonwealth v.

Duguay, 430 Mass. 397, 404 (1999). There was no improper burden

shifting.

Additionally, William contends that the prosecutor argued

facts not in evidence in two instances, amounting to reversible

error. Specifically, the prosecutor mistakenly stated that

people came to the Lyonses' home in response to the motorcycle

advertisement (they only had telephoned), and that the Lyonses

received the letter alleging sexual molestation before rather

than following the e-mail sent by "Brian."18 The prosecutor's

two misstatements of fact did not result in a substantial risk

of a miscarriage of justice. The facts were many and varied,

and none of the misstatements "went to the heart of the case."

Commonwealth v. Coren, 437 Mass. 723, 731 (2002). Further, the

judge properly instructed the jury that closing arguments are

not evidence. Consequently, reversal is not required.

8. Speedy trial claim. Approximately two years after the

defendants were charged, they moved for a dismissal pursuant to

Mass. R. Crim. P. 36, as amended, 422 Mass. 1503 (1996), due to

speedy trial violations. The motion judge acted well within his

discretion in declining to accept defense counsels' unsworn

18
While it remains unclear from the record whether the
"Brian" letter or e-mail arrived at the Lyonses first, we
acknowledge there is a chance the prosecutor might have confused
the sequence of events.
 33

representations regarding various continuances, and in denying

the motion. We agree with the motion judge that the defendants

did not undertake a proper rule 36 calculus or sufficiently

develop their argument, leaving the court unable to adequately

assess their claim. Accordingly, it is waived.

Judgments affirmed.