Commonwealth v. Czubinski, 2015 Mass. App. Unpub. LEXIS 191 (Mass. Ct. App. Mar. 16, 2015):

Following a jury trial in the District Court, the defendant, Theresa Czubinski, was convicted of one count of criminal harassment. She appeals, claiming error in the judge's reasonable doubt instruction and in the improper admission of electronic mail messages (e-mails). We affirm.

The jury could have found the following facts. Charles Clabaugh was the director of human resources for the assessors department for the city of Boston from 2001 to 2012. Clabaugh supervised the defendant, who was a staff member of the human resources department, from April, 2001, until sometime in 2003, when she was promoted to a higher paying position in another unit.¹ At that point, Clabaugh no longer worked with or supervised the defendant. The defendant resigned from her position in 2006, claiming that "she didn't like place, [and] she didn't like the people." Sometime thereafter, the defendant called Clabaugh and asked him to retroactively change her resignation to a layoff so that she could collect unemployment benefits. He denied the request. Several months thereafter, the defendant again called [*2]  Clabaugh, asking for her job back and claiming that she was starving. She was not rehired.

1   Clabaugh found the defendant to be smart and organized, but poor at communicating with her colleagues. On one occasion, in his role as director of human resources, Clabaugh spoke with the defendant about her inability to get along with others and suggested she seek professional help.

A year or so later, Clabaugh saw the defendant standing in Boston's City Hall Plaza. Upon hearing his name being called, Clabaugh turned to find the defendant making a rude gesture. The defendant followed Clabaugh to his office building and began banging on the glass walls until she was removed by security. Over the next two years, the defendant made inappropriate and nonsensical telephone calls to Clabaugh at both his work and home numbers. These calls reached their peak between February and March of 2012, when the defendant left approximately fifty voicemail messages at Clabaugh's work number.² Between February and May, 2012, the defendant also sent Clabaugh nineteen e-mails that were similar in detail and character to the voicemail messages. On April 29, 2012, the defendant appeared at Clabaugh's home, rang his doorbell, [*3]  and yelled at him when he came out of his house.³ Clabaugh called the police, but the defendant left before they arrived.

2   The messages included allegations that Clabaugh had sexually abused the defendant, had made her homeless, and had conspired with mental health facilities to make her life miserable. She described "googling" Clabaugh's wife, and learning details about his family, including where his daughter attended summer camp and what kind of bicycles his children rode.

3   Clabaugh had maintained a professional relationship with the defendant during her employment. He did not provide her with his home address or telephone number. As a member of the human resources department, the defendant had access to this private information.

The defense at trial, which the jury rejected, was justification. The defendant admitted that she had left the voicemail messages, appeared at Clabaugh's home, and sent the e-mails. She claimed her conduct was justified because it was provoked by Clabaugh, and therefore did not constitute harassment.

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2. Authentication of e-mails. At trial, the defendant objected to the admission of certain e-mails, but did not thereafter object to the admission of additional e-mails, claiming such objections would be futile. The defendant avers the issue was preserved for appeal; the Commonwealth contends it was not. We need not reach that issue as we discern no error.

The defendant contends that the e-mails were not properly authenticated and admitted. Authentication is established by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Commonwealth v. Purdy, 459 Mass. 442, 447, 945 N.E.2d 372 (2011), quoting from Mass. G. Evid. § 901(a) (2011). "[C]onfirming circumstances" beyond the sender's self-identification⁵ are sufficient to authenticate an electronic communication. Id. at 449. See Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 368, 16 N.E.3d 502 (2014).

5   The e-mails were sent to both Clabaugh's home and work e-mail accounts. The "From" line on each e-mail reads: "Theresa Czubinski ." In one e-mail, the writer identifies herself by stating: "My name is Theresa Czubinski."

The voicemail messages left at Clabaugh's work number and the e-mails sent to his home [*6]  account reflect nearly identical details, which establish "confirming circumstances."⁶ Even if there was error, it did not create a substantial risk of a miscarriage of justice. The case against the defendant was overwhelming and the e-mails were cumulative of the other voluminous evidence of criminal harassment.

6   These include such things as the defendant's receipt of disability income, her status as homeless, and her claim that Clabaugh made her sick.