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.
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