NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-925

COMMONWEALTH

vs.

MARCOS GOMEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Marcos Gomez, appeals from his convictions 

of assault and battery on a family or household member, G. L. 

c. 265, § 13M (a); three counts of violating an abuse prevention 

order, G. L. c. 209A, § 7; and witness intimidation, G. L. 

c. 268, § 13B.1 Concluding that the WhatsApp2 text messages and 

voicemails were properly authenticated and there was sufficient 

evidence that the defendant intimidated the victim, we affirm.

1. Authentication of WhatsApp text messages and 

voicemails. "In the case of a digital communication that is 

1 The jury acquitted the defendant of kidnapping, G. L. 

c. 265, § 26; and rape, G. L. c. 265, § 22 (b).

2 WhatsApp is a communication platform that allows users to 

send text messages, voice messages, images, videos, and files 

and to make voice and video calls. See WhatsApp Inc. v. NSO 

Group Techs. Ltd., 17 F.4th 930, 933 (9th Cir. 2021), cert. 

denied, 143 S. Ct. 562 (2023).
2

relevant only if authored by the defendant, a judge is required 

to determine whether there is sufficient evidence to persuade a 

reasonable trier of fact that it is more likely than not that 

the defendant was the author of the communication." 

Commonwealth v. Meola, 95 Mass. App. Ct. 303, 308 (2019). 

"Evidence that the defendant's name is written as the author of 

an [electronic communication] that bears the defendant's name is 

not sufficient alone to authenticate the electronic 

communication as having been authored or sent by the defendant."

Commonwealth v. Purdy, 459 Mass. 442, 450 (2011). "There must 

be some 'confirming circumstances' sufficient for a reasonable 

jury to find by a preponderance of the evidence that the

defendant authored the [electronic communications]." Id., 

quoting Commonwealth v. Hartford, 346 Mass. 482, 488 (1963).

"We review a judge's preliminary determination of conditional 

relevancy under Mass. G. Evid. § 104(b) under an abuse of 

discretion standard." Meola, supra at 309.

Here, the text and voice messages contain details that 

adequately identify the defendant as their author. The victim 

testified that, at the bar before the crimes, the defendant 

walked over to her and said, "why don't you look at your phone 

and read your messages?" One of the text messages from the 

defendant is from this time and says, "You are well entertained 

ma!!" The victim testified that, while she and the defendant 
3

were in the parking lot outside of the bar, the defendant 

accused her of scratching his face. In a voice message the next 

day, the defendant said that the victim had "sow[ed her] nails 

on [his] face." The victim testified that, on November 12, the 

defendant told the victim that, "if [she was] going to go do the 

laundry, then wait -- wait for [him] and [they would] go 

together." The text messages from the defendant that day 

include, "Did you go to wash?" and, "If you have not gone wait 

for me." Additionally, there are ten text or voice messages in 

which the defendant appeared to reference or apologize for the 

crimes that the victim described happening on November 11 and 

12. In short, the content of the voice and text messages 

contain adequate confirming circumstances to establish that it 

was "more likely than not that the defendant was the author of 

the communication[s]." Meola, 95 Mass. App. Ct. at 308. See

Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 674-675 (2011)

(defendant's actions "served to authenticate the e-mails" where 

he "provided his telephone number and photograph" and "indicated 

that [he] would be at a certain place at a certain time and 

. . . appeared at that place and time").

2. Sufficiency of the evidence of witness intimidation. 

"When reviewing the denial of a motion for a required finding of 

not guilty, 'we consider the evidence introduced at trial in the 

light most favorable to the Commonwealth, and determine whether 
4

a rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.'" Commonwealth v. 

Quinones, 95 Mass. App. Ct. 156, 162 (2019), quoting 

Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018).

"The inferences that support a conviction 'need only be 

reasonable and possible; [they] need not be necessary or 

inescapable.'" Commonwealth v. Chin, 97 Mass. App. Ct. 188, 195 

(2020), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 

303 (2016).

A conviction of witness intimidation requires a showing 

that the defendant "threatened, intimidated, or harassed" the 

victim. Commonwealth v. Gardner, 102 Mass. App. Ct. 299, 304 

(2023).3 Conduct is intimidating if the "acts or words . . .

would instill fear in a reasonable person." Commonwealth v. 

Rivera, 76 Mass. App. Ct. 530, 535 (2010). It is not "necessary 

to establish that the intimidation was successful in the sense 

that the target of the intimidating conduct was actually 

frightened and made reluctant to testify." Id.

Here, all of the defendant's communications to the victim 

must be considered in light of the fact that they occurred soon

after the defendant scratched the victim's face, bit off her 

3 The defendant does not challenge the sufficiency of the 

evidence supporting the other elements of witness intimidation. 

See Gardner, 102 Mass. App. Ct. at 304.
5

acrylic nails "to teach [her] a lesson," told her, "we're going 

to die, both of us today," injured her hand with her ring, and 

then raped her twice.4 The day of the second rape, the defendant 

inundated the victim with voice messages, text messages, and 

calls.5 In the midst of these communications, the victim texted 

the defendant, "I don't want to talk" and, "Leave me alone." 

Shortly thereafter, he sent a voice message saying, "Where are 

you little one? I passed by your house and You are not there." 

That night, the defendant sent the victim several messages 

discouraging her from contacting the police.

After the defendant was arrested, he attempted to call the 

victim from jail twice. For the first call, the defendant 

called a third person who added the victim to the call, and the 

victim hung up immediately. During the second call, the 

defendant asked the victim to forgive him, told her that he 

"trust[ed] God that soon [he would] leave [jail]," and asked her 

4 Although the jury acquitted the defendant of kidnapping 

and raping the victim, "[a] jury may acquit the defendant on one 

charge and find the defendant guilty on a different charge, even 

if certain evidence goes to both charges." Commonwealth v. 

Howe, 103 Mass. App. Ct. 354, 357 n.3 (2023). The trial judge, 

in ruling on the defendant's motion for a required finding of 

not guilty, did not need to (and could not) consider the later 

jury verdicts.

5 The defendant sent the victim fourteen voice messages, 

twenty-four text messages, and one photo, and tried to call her 

four times, including twenty-one communications after the victim 

texted him, "I don't want to talk" and, "Leave me alone."
6

to help him. She told him that she "[couldn't] help [him] 

anymore" because she had already given her statement to law 

enforcement, and the defendant replied, "You can do more. You 

can be of great help. And I will thank you for all my life and 

my children will thank you. I really give thanks for what has 

happened."

Finally, the defendant mailed the victim a letter. In the 

letter, the defendant expressed surprise that the victim had

accused him of rape and claimed that, after he was charged with 

rape, other prisoners had "lynched" him, breaking his arm, head, 

and ribs. He asked the victim to forgive him, then wrote,

"I want to beg you, ma!! please don't make my crime more 

serious, for the love that united us one day please soften 

your heart and do not accuse me anymore, I promise that I 

will not bother you again, I will let you make your life as 

you want but give me the opportunity to have a life outside 

these bars, I want to serve God. I already received my 

punishment love please let me out of here."

The defendant went on to claim that "every 2 days they give 

[him] a bread with ham and a glass of water," suggested that he 

might die soon, then told the victim to "just leave [him] alone 

in the courts so that they dismiss the case . . . be it the last 

thing [the victim does] for [him]." 

In light of the defendant's escalating verbal and physical 

abuse during their dating relationship, the jury could find that 

these communications to the victim were intimidating, implicitly 

suggesting that he blamed her for the serious violence he had 
7

suffered. See Gardner, 102 Mass. App. Ct. at 305 (defendant's 

"repeated references to the victim as both the reason for his

incarceration and prosecution and the only potential key to his 

freedom" intimidating "in the context of the defendant's longstanding pattern of controlling and abusive conduct toward the 

victim"). Where the defendant had already responded to being 

scratched with such extreme violence, these communications 

suggested even greater danger to the victim if she did not 

follow the defendant's instructions to drop the charges. See 

Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613 (2007), 

quoting Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), 

cert. denied, 532 U.S. 980 (2001) ("jury may consider the 

context in which the allegedly threatening statement was made

and all of the surrounding circumstances").

Judgments affirmed.

By the Court (Green, C.J., 

Henry & Ditkoff, JJ.6),

Assistant Clerk

Entered: May 8, 2024.

6 The panelists are listed in order of seniority.