MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this case we are asked to consider whether the actions of the defendant, Lewis Floyd, constituted extortion within the meaning of G. L. c. 265, § 25. Concluding that the evidence at trial satisfied the statutory elements of the crime and finding no error, we affirm.
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On July 11, 2018, the defendant went to Tiverton, Rhode Island, and demanded to see his son. The childs mother denied the defendants demand. The next day, after not “getting anywhere with [Tiverton authorities],” the defendant called the Childrens Advocacy Center of Bristol County (CAC) nineteen times between 8:46 A.M. and 11:38 A.M. In those calls, each of which displayed the defendants name on the “caller ID,” he demanded that the CAC help him address his concerns for his son. During the initial call, after he was told that the childs name “didnt come up” in the CAC database because the child had not previously received services in the CAC, the defendants conduct “escalated,” and he “started to yell.” The defendant referred to the employee with whom he spoke, and other women, as “bitches,” and stated that he was going to go to the familys home in Tiverton, “tie up the parents and make the bastard children watch while he puts two in the back of the head.” Attempts to deescalate were unsuccessful, and the defendant made several more calls during which he threatened CAC employees with dismemberment, among other things.
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Acting out of concern for the safety of the defendants child, the family in Tiverton, and CAC personnel, the CAC employee with whom the defendant first spoke contacted the Tiverton and Fall River Police Departments. Officer Kevin Guerreiro of the Fall River Police Department arrived at the CAC first, followed by Lieutenant Jay Huard and other members of law enforcement. At the CAC, Officer Guerreiro answered one of the defendants calls and told him to contact the Tiverton Police Department. Less than an hour after ending the telephone call and “clear[ing] the CAC,” Officer Guerreiro was again dispatched to the CAC because the defendant had continued to contact the CAC.
The defendant told an employee that if the CAC “didnt do what he wanted [it] to do ․ by three or 4:00 P.M.[,] he was going to bring a group and come to [its] location,” and “[a]t least one of [the employees] was going to be physically dismembered.” The defendant demanded that the CAC “help him out and call either [Department of Children and Families] or [Department of Children, Youth & Families] in Rhode Island and help him, and they had until four oclock or he was going to have his boys ․ light the place up and shoot into the building.”
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After being told by Lieutenant Huard that his threats and calls were scaring the “females” at the CAC, the defendant stated:
“I know theres females there, and females need to fear me. They need to feel fear in their heart because women ruin this world, womens rights ruin this world, and women need to fear me.”
Officer Guerreiro was subsequently directed to an address where he located and arrested the defendant.
At the jury trial held in the Superior Court, the judge denied the defendants motions for a required finding of not guilty brought at the close of the Commonwealths case and at the close of all evidence.
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The jury found the defendant guilty of extortion by threat of injury.
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This appeal ensued.
Discussion. 1. Sufficiency of the evidence. The defendant claims that the judge erred in denying his motions for a required finding of not guilty because the evidence at trial failed to prove extortion where he merely requested unspecified assistance from government officials and did not seek pecuniary or financial payment. We apply the familiar test to determine “whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis omitted). Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). “If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province.” Commonwealth v. Lao, 443 Mass. 770, 779 (2005). See Commonwealth v. Nelson, 370 Mass. 192, 202-203 (1976) (evidence need not require jury to draw an inference; sufficient that evidence permits inference to be drawn).
General Laws c. 265, § 25,
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provides, in relevant part:
“[w]hoever ․ maliciously threatens an injury to the person or property of another ․ with intent thereby to extort money or any pecuniary advantage, or with intent to compel any person to do any act against his will, shall be punished ․”6
By the statutes plain language, the elements of extortion are (1) a malicious threat, (2) made to a named person, (3) to injure someones person or property, (4) with intent to extort money or any pecuniary advantage or compel any person to do any act against his will. In the present case, there is no dispute as to the sufficiency of the first three elements and, accordingly, the defendant only challenges the sufficiency of the fourth element. Specifically, he claims that there was no evidence to show an extortive intent -- i.e., that he intended to extort money or anything of value. For the reasons stated below, the claim is unpersuasive.
Pursuant to G. L. c. 265, § 25, extortion is committed “by making the threat with intent to compel the person so threatened to do an act” (quotation and citation omitted). Commonwealth v. Snow, 269 Mass. 598, 602 (1930). The plain language of the statute does not require a financial payment as the sole method of proving intent -- an “intent to compel any person to do any act against his will” is sufficient. G. L. c. 265, § 25. See Commonwealth v. Nichols, 134 Mass. 531, 534-535 (1883) (extortion by threatening false charge of adultery to compel release of victims valuable rights).
The evidence here was sufficient to prove that the defendant extorted the CAC employees. Several witnesses detailed the repeated threats made by the defendant, combined with his “or else” ultimatum. The defendant cites no authority for the proposition that extortion requires proof of a demand for a financial payment. Indeed, that contention contradicts the plain language of the statute, which delineates the requisite mens rea as “intent thereby to extort money or any pecuniary advantage, or ․ intent to compel any person to do any act against his will.” The use of “or” in the statute specifies that extortion may be shown by proving an intent to extort money, or by proving an “intent to compel any person to do any act against his will.” In the present case, the defendants conduct qualified as extortion because “[t]he emphasis in the crime ․ is on the wrongful use of fear to compel the alleged victim to surrender something of value to the extortionist” (emphasis removed). Commonwealth v. Cohen, 456 Mass. 94, 127 (2010). The evidence showed that the defendant used fear to compel the CAC employees to surrender agency services, which were of value to him, and therefore a reasonable trier of fact could have concluded that the defendant committed extortion. See Nichols, 134 Mass. at 534-535 (indictment “sufficiently alleges a conspiracy falsely to charge and accuse [the victim] of adultery, and thereby to extort from her a release of valuable rights, and to compel her to do acts against her will”).
2. Specific unanimity instruction. The defendant contends that the omission of a specific unanimity instruction constituted reversible error because the conduct at issue -- the various phone calls -- concerned successive, distinct acts. A specific unanimity instruction “is required when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged” (quotation and citation omitted). Commonwealth v. Palermo, 482 Mass. 620, 629 (2019). The instruction “indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged.” Id., quoting Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987). “[W]here the defendant requested a specific unanimity instruction and where there is a significant likelihood that the conviction resulted from different jurors concluding that the defendant committed different acts,” the judges failure to give the instruction constitutes reversible error. Commonwealth v. Conefrey, 420 Mass. 508, 514 (1995).
Here, there is no significant likelihood that the conviction resulted from different jurors concluding that the defendant committed different acts. The defendant called the CAC nineteen times over the course of approximately three hours, and the evidence indicates that the substance of the calls was the same. “When a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required” (citation omitted). Commonwealth v. Santos, 440 Mass. 281, 285 (2003), overruled on other grounds by Commonwealth v. Anderson, 461 Mass. 616, 633-634, cert. denied, 568 U.S. 946 (2012). In this instance where the defendant engaged in “a continuing course of conduct or a single criminal scheme ․ the jury will either believe that [the course of conduct or criminal scheme] has occurred, of necessity encompassing a number of discrete acts, or they will disbelieve it” (quotation and citation omitted). Commonwealth v. Fan, 490 Mass. 433, 451 (2022). Due to the short period in which the defendant made the calls, and the corroborating witness testimony as to the similar nature of the calls, it was clear that the defendant was engaged in a continuing course of criminal conduct, and therefore a specific unanimity instruction was not required.
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We discern no error.
3. Prior bad acts. The defendant maintains that he was prejudiced by the admission of (1) prior bad acts evidence concerning his threats to the family in Tiverton and (2) misogynistic statements directed toward the female CAC employees. A judge has discretion in determining “the relevance, probative value, and prejudice of such evidence,” and the “decision to admit such evidence will be upheld absent clear error.” Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007). “We generally restrict admission of prior bad act evidence to purposes such as common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.” Commonwealth v. Anestal, 463 Mass. 655, 665 (2012), quoting Commonwealth v. Marshall, 434 Mass. 358, 366 (2001).
The statements concerning the defendants threats to the family in Tiverton were admissible as evidence of the defendants intent to force the CAC employees to adhere to his demands. The evidence was also relevant to establish the use of threats or intimidation, an element of extortion. Furthermore, to avoid any risk of prejudice the judge provided a limiting instruction explaining that the evidence of the defendants threats to the family was not the subject of any threat in the indictment. Similarly, evidence of the defendants misogynistic statements was relevant to provide context and to show the defendants intent to instill fear in the CAC employees and to compel them to comply with his demands. Accordingly, the judge did not abuse his discretion in admitting this evidence.
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4. Closing argument. The defendant challenges the prosecutors reference in closing argument to the defendants threats to the family in Tiverton. He contends that the argument impermissibly appealed to the jurys sympathies and suggested that the jury could render a verdict based on “general considerations.” The defendant objected to these statements during closing argument, and we therefore “determine whether the jury were substantially swayed by the error” (quotation and citation omitted). Commonwealth v. Moore, 489 Mass. 735, 755 (2022).
Even assuming, arguendo, that it was error to mention the threat to the family, the judges prior bad acts limiting instruction, discussed supra, prevented any possible prejudice to the defendant. The instruction prohibited the jury from using this evidence as proof of the crime for which the defendant was charged. “The jury are presumed to follow the judges instruction[s],” and we therefore we discern no error. Commonwealth v. Pope, 406 Mass. 581, 588 (1990).
The defendant also contends that in closing argument the prosecutor incorrectly represented that repeated phone calls alone were sufficient to prove a threat. We disagree. First, the prosecutor did not assert that he was defining the crime of extortion and stated that the judge would define the elements. Second, as the defendant acknowledges, the judge provided a correct instruction on the elements of extortion, specifying that a threat must be contained in a “verbal, written or printed communication” seeking “to accuse another person of a crime or offense, or to do injury to the person or property of another.” Thus, even if the prosecutor misstated the law, any prejudice was cured by the judges clear instructions. See Commonwealth v. Brum, 492 Mass. 581, 602 (2023) (“[C]losing arguments must be viewed in the context of the entire argument, and in light of the judges instruction to the jury, and the evidence at trial” [citation omitted]). Finally, the judge instructed the jury at the outset of trial and in the final charge that closing arguments are not evidence.
5. Authentication instruction. The defendant also claims that the judge erred in “shifting” the Commonwealths burden of proof by instructing the jury that before they could consider the content of the phone calls, they must be satisfied by a preponderance of the evidence that the calls had been made by the defendant. Because the defendant did not object to this instruction at trial, our review is limited to whether there was error, and if so, whether such error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
We addressed this issue in Commonwealth v. Alden, 93 Mass. App. Ct. 438 (2018), where the judge provided the same instruction:
“Trial judges have considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration. ․ We acknowledge that in this case there was a fine line between the (1) preliminary determination of the authenticity of the text messages and (2) proof of the defendants identity as the perpetrator of the threats. Nevertheless, authenticity and identity are different legal concepts, and the judge did not err in explaining the distinction” (quotations omitted).
Id. at 444. As in Alden, the judge here did not err “[b]ecause the Commonwealth sought to introduce evidence of the contents of” the phone calls, and therefore “an instruction on a preliminary determination of authorship was appropriate, and the instruction given was an accurate statement of the law.” Id. at 443. “The judge also properly instructed the jury on the elements of the crime, including that the Commonwealth had the burden to prove beyond a reasonable doubt” the elements of extortion. Id. Considering these instructions as a whole, see Commonwealth v. Allen, 474 Mass. 162, 168 (2016), we discern no error.
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Judgment affirmed.
FOOTNOTES
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. Three CAC employees testified to the defendants threats, or to the impacts caused by the defendants threats and behavior. Various members of law enforcement testified to communications with the defendant, observations of the employees following the defendants communications, and other corroborative evidence.
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. Lieutenant Huard also testified that the defendant threatened that “if no action is taken by four p.m. today a female head will be dismembered.”
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. The defendant filed a waiver of counsel on June 19, 2019, and appeared pro se at trial, assisted by “standby counsel.”
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. The jury found the defendant not guilty of making a bomb or hijack threat causing serious public alarm, G. L. c. 269, § 14 (c). An indictment charging threat to commit a crime, G. L. c. 275, § 2, was dismissed before trial.
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. General Laws c. 265, § 25, also creates criminal liability for anyone who “maliciously threatens to accuse another of a crime or offence ․ with intent thereby to extort money or any pecuniary advantage, or with intent to compel any person to do any act against his will”; and for “any police officer or person having the powers of a police officer, or any officer, or employee of any licensing authority who ․ uses or threatens to use against another the power or authority vested in him, with intent thereby to extort money or any pecuniary advantage, or with intent to compel any person to do any act against his will.” Those portions of the statute are not at issue in the present case.
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. In its original form, the predecessor extortion statute, Rev. St. 1836, c. 125, § 17, provided:“If any person shall, either verbally or by any written or printed communication, maliciously threaten to accuse another of any crime or offence, or shall by any written or printed communication maliciously threaten any injury to the person or property of another, with intent thereby to extort money, or any pecuniary advantage whatever, or with intent to compel the person so threatened to do any act against his will, he shall be punished ․”Similar language was enacted into the General Laws and subsequently revised in 1932 and again in 1953. See St. 1932, c. 211; St. 1953, c. 294. See also Commonwealth v. Hamilton, 459 Mass. 422, 429 n.9 (2011). None of the revisions affected the portion of the statute at issue in the present case.
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. Contrary to the defendants argument that the specific unanimity instruction was required because the Commonwealth did not name a specific victim, the defendant need not “have [had] a definite person in mind” to extort. Snow, 269 Mass. at 602.
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. The defendant also challenges the detectives testimony concerning her interview with the defendants childs mother as inadmissible hearsay. Specifically, the defendant takes issue with the mothers account of the defendants failure to see his child for two years and their interaction the day before the defendant called the CAC. To the extent that the judge struck this testimony and instructed the jury to disregard it, the claim is without merit. In any event, we discern no prejudice where, as here, the admission of inadmissible hearsay “did not influence the jury, or had but very slight effect” (citation omitted). Commonwealth v. Cheremond, 461 Mass. 397, 411 (2012).
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. The defendant also argues that because Lieutenant Huard testified maskless after testing positive for COVID-19 a week earlier, there was an extraneous influence on the jury necessitating a mistrial. This argument is unavailing because, following Lieutenant Huards testimony, the judge conducted an individual voir dire of the jury regarding whether his COVID-19 status impacted their ability to serve as a juror or impacted their ability to be fair and impartial. See Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). All of the jurors affirmed that they were not affected. The judge was entitled to credit the jurors responses. See Commonwealth v. Doughty, 491 Mass. 788, 804 (2023). Thus, the judge did not abuse his discretion in denying the defendants motion for a mistrial. See Commonwealth v. Bryant, 447 Mass. 494, 503 (2006).