MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of assault and battery on her neighbor in violation of G. L. c. 265, § 13A (a). The conviction was based on evidence that the defendant charged at the victim, with whom she had a hostile relationship, grabbed her around the neck, and choked her.
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On appeal, the defendant claims that the judge abused her discretion in admitting evidence that the defendant subsequently threatened the victims brother, and erred in instructing the jury that the threat could be considered as evidence of consciousness of guilt. The defendant also challenges the sufficiency of the evidence against her. We affirm.
Discussion. 1. The threat. The incident at issue here occurred in July 2014. The Commonwealth filed a motion in limine to admit eight prior bad acts and five subsequent bad acts alleged to have been committed by either the defendant or her codefendant. After a hearing, a judge other than the trial judge (motion judge) denied the Commonwealths motion as to all but two of the alleged bad acts, occurring on May 12, 2013, and October 2, 2014. As to those two acts, the motion judge deferred the ultimate decision on admissibility to the trial judge. After a nonevidentiary hearing immediately before trial, the trial judge excluded the May 12, 2013, act, concluding that it was too remote in time. However, the judge allowed the Commonwealth to introduce evidence of a threat the defendant was alleged to have made to the victims fourteen year old brother on October 2, 2014, because it was “really tied to the incident thats here before the court.”
Pursuant to that ruling, the brother testified that in October 2014, the defendant screamed at him, “If you say anything, I will kill you and your family.” On appeal, the defendant argues that evidence of the threat should not have been admitted because “there was a complete lack of credible evidence that the alleged statement in October of 2014 happened, was relevant to the crime charged or tended to show [the defendants] guilt, knowledge or motive.” Because the defendant moved in limine to exclude the evidence, we review for prejudicial error. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016).
Evidence of prior or subsequent bad acts may not be introduced for purposes of showing the accuseds character or propensity to commit the crimes charged; however, such evidence may be admissible for other purposes, such as to demonstrate “a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). See Mass. G. Evid. § 404(b)(2) (2021). “Such evidence may also be used if relevant to the defendants state of mind.” Commonwealth v. Keown, 478 Mass. 232, 243-244 (2017). “Even if the evidence is relevant to one of these other purposes, the evidence will not be admitted if its probative value is outweighed by its risk of unfair prejudice to the defendant.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). “To be sufficiently probative the evidence must be connected with the facts of the case [and] not be too remote in time.” Commonwealth v. Butler, 445 Mass. 568, 574 (2005). The determination of whether the evidence is relevant and more probative than prejudicial is “committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent palpable error” (quotation and citation omitted). Commonwealth v. McCowen, 458 Mass. 461, 478 (2010).
We discern no palpable error here because the threat was not too remote in time and was probative of the defendants state of mind, specifically, her consciousness of guilt. The threat was made to the victims brother, who was a potential witness in the pending prosecution, having witnessed the assault and battery on his sister three months earlier. In these circumstances, the trial judge did not abuse her discretion in deciding that the defendants statement was relevant and “tends to show a pattern of behavior.” While it would have been a better practice for the trial judge to have made specific findings that the probative value of this evidence outweighed its prejudicial effect, such a finding was implicit in her decision to admit the evidence after careful consideration at a pretrial hearing.
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Nor do we discern error in the trial judges decision to instruct the jury regarding consciousness of guilt. Such an instruction may be given where “there is an inference of guilt that may be drawn from evidence of flight, concealment or similar acts such as false statements to the police, destruction or concealment of evidence, or bribing or threatening a witness” (quotations and citations omitted). Commonwealth v. Morris, 465 Mass. 733, 738 (2013). The judge acted within her discretion in concluding that the defendants statement that she would “kill [the witness] and his family” if he “sa[id] anything” was a direct threat from which the jury could infer the defendants consciousness of guilt.
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We are not persuaded by the defendants argument that “there was inadequate proof that the statement allegedly made in October of 2014 was related to or referenced the crime charged.” There is no requirement that the defendants threat be expressly addressed to the witnesss testimony. See Commonwealth v. Scanlon, 412 Mass. 664, 677 (1992). “If conflicting inferences are to be drawn from a defendants conduct, the determination of where the truth lies is the province of the jury.” Id.
The judge gave a balanced instruction to the jury informing them that they could consider whether the defendants alleged threat reflected feelings of guilt but were not required to draw such an inference, that such conduct does not necessarily reflect feelings of guilt, that the defendant was not charged with the threat, and that they could not consider such evidence as a substitute for proof of guilt on the offense of assault and battery. This charge adequately cautioned the jury regarding the “equivocal nature” of perceived threats to a witness. Commonwealth v. Toney, 385 Mass. 575, 585 (1982).
2. Sufficiency. The defendant challenges the sufficiency of the evidence that she intended to touch the victim. We review this claim to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
To sustain a conviction for assault and battery, the Commonwealth must prove beyond a reasonable doubt that the defendant intended to commit a battery upon the alleged victim, that is, a harmful or unpermitted touching. See Commonwealth v. Porro, 458 Mass. 526, 529-530 (2010); G. L. c. 265, § 13A (a). Here, among other things, the victim testified that the defendant charged at her and put her hands around the victims throat. When the victims parents attempted to intervene, the defendant pushed them to the ground and the codefendant stabbed the victims father. This testimony alone, when considered in the light most favorable to the prosecution, was sufficient to prove that the defendant committed a harmful or unwanted touching. The defendants argument that inconsistencies between the victims testimony and that of her mother and brother left the jury to resort to conjecture is unavailing. First, each of the Commonwealths witnesses testified unequivocally that they observed the defendant “grab” the victim by the neck or “chok[e]” her. Second, inconsistencies in the evidence go to the witnesss credibility, not the sufficiency of the evidence. Commonwealth v. Ruci, 409 Mass. 94, 97 (1991). Credibility is a question for the jury to decide. Id.
In short, we are satisfied that the evidence, viewed in the light most favorable to the prosecution, was sufficient to establish the elements of assault and battery beyond a reasonable doubt.
Judgment affirmed.
FOOTNOTES
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. The jury returned not guilty verdicts on charges that the defendant committed an assault and battery on other members of the victims family. The jury also returned a not guilty verdict on the charge that the codefendant committed an assault and battery by means of a dangerous weapon on the victims father.
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. It is also a better practice to immediately instruct the jury regarding the limited purpose of bad act evidence. See Commonwealth v. Bryant, 482 Mass. 731, 737 (2019). However, the defendant did not request such an instruction, and the judges final instruction regarding consciousness of guilt informed the jury of the limited purpose for which they could consider evidence of the threat.
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. On appeal the defendant also argues that the victims brothers actual testimony regarding the defendants statement varied from his expected testimony by omitting a single word, “again,” which had been critical to the trial judges decision on the motion in limine to admit the testimony. The defendant did not move to strike the testimony on that basis, however, so any argument that the statement was inadmissible on that basis is waived. Even if, hypothetically, admission of the testimony were error, we would see no substantial risk of a miscarriage of justice, particularly where the jury acquitted the defendant of two of the three charges against her, see note 2, supra, suggesting that the bad acts evidence did not unfairly cause them to view the defendant as having a criminal character.