Opinion
16-P-199
04-28-2017
COMMONWEALTH v. Francis BASTARDO-REYES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Convicted on five indictments for assault by means of a dangerous weapon, the defendant, Francis Bastardo-Reyes, now challenges on appeal a portion of the judge's instruction on the definition of assault by arguing that the evidence was not sufficient to support a jury verdict of guilty of assault on the theory of attempted battery. We affirm.
Background. The jury were warranted in finding the following facts. On the evening of October 10, 2014, J.S., an eleven year old boy, was sitting in his family's living room, along with four other family members (collectively, the victims), when suddenly several shots rang out. One of the victims felt her sweater move, as if something quickly passed by her. J.S.'s older sister, another minor, immediately looked out the window and saw the defendant tucking a firearm into his pocket as he walked back to his home next door. Recognizing the defendant, she yelled out his nickname. J.S., who was not in the room at the time, went into the room later and observed holes in the windows. Police eventually recovered four projectiles from inside the victims' living room.
The shooting incident was the culmination of a feud between the victims and their family members, on the one hand, and the defendant and his girl friend, that had been underway for several months. The two groups were next-door neighbors. The feud started when the defendant's girl friend confronted one of the victims and complained that she (the victim) was texting the defendant, saying that she (the defendant's girl friend) and a group of friends were going to beat her. The victim told her mother, who got into a physical fight with the defendant's girl friend. Soon after, the girl friend's brother and the defendant joined the fight along with the victim's two brothers and step-father. Despite the violent nature of the fight, no police were called.
Sometime later, on the day of the shooting incident, J.S. was outside his home when he encountered the defendant. The defendant approached him and lifted up his sweatshirt, revealing the handle of a firearm. J.S. testified that the defendant told him, "This is what I got for your brother." This was apparently in response to an incident earlier that day, where the defendant's girl friend had been outside and heard J.S.'s brother yell, "Get her!" causing her to run inside and tell the defendant. J.S. told his brother about the defendant's statement, who said not to worry. Approximately one hour later, the shooting incident described above occurred.
The defendant was charged with fourteen offenses, including five indictments for assault by means of a dangerous weapon: one indictment for each of the five victims in the living room. At trial, the judge instructed the jury in part that
"[i]n particular, [the defendant] is charged with assault by means of a dangerous weapon to wit: A firearm.
"Once again, an assault may be committed in either of two ways, either an attempted battery or immediately threatened battery.
"....
"...In order to establish the first form of assault, an attempted battery, the Commonwealth must prove beyond a reasonable doubt that [the defendant] intended to commit a battery, that is a harmful un-permitted touching upon the [victims], took some overt step toward accomplishing that attempt and came reasonably close to doing so. With this form of assault, it is not necessary for the Commonwealth to show that the [victims] were put in fear or were even aware of the attempted battery.
"In order to prove the second form of assault, an imminently threatened battery, the Commonwealth must prove beyond a reasonable doubt that [the defendant] intended to put the [victims] in fear of an imminent battery and engaged in some conduct toward them, which they reasonably perceived as imminently threatening a battery."
The defendant did not object to the judge's instructions, either during the charge conference or while the judge was instructing the jury. No request for a corrective instruction was made after the charge. The jury found the defendant guilty on all five indictments for assault by means of a dangerous weapon, and of three of the remaining nine charges. The defendant also did not object to the jury's verdict slips.
Discussion. We review an unpreserved claim of error in the judge's jury instructions to determine if there was an error, and if so, whether that error caused a substantial risk of a miscarriage of justice. Commonwealth v. Kelly, 470 Mass. 682, 697 (2015). This standard "requires us to determine ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made.’ " Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). However, because we conclude that there was no error in the judge's instruction, it is unnecessary to assess the impact of any error.
There are two theories of assault under the common law: attempted battery and threatened battery. Commonwealth v. Porro, 458 Mass. 526, 530 (2010). Here, the defendant's challenge is limited to the instruction on attempted battery. In particular, he argues that the evidence was insufficient to support such an instruction. He argues that there was insufficient evidence of his intent to commit a battery on the victims because his statement to one of the victims that "this [firearm] is what I got for your brother," was not probative of his future intent. We disagree.
With regard to the two theories, the Supreme Judicial Court has held that
"[b]ecause attempted battery and threatened battery are closely related, we do not require that a jury be unanimous as to which theory of assault forms the basis for their verdict; a jury may find a defendant guilty of assault if some jurors find the defendant committed an attempted battery (because they are convinced the defendant intended to strike the victim and missed) and the remainder find that he committed a threatened battery (because they are convinced that the defendant intended to frighten the victim by threatening an assault)."
Porro, supra, at 534 (quotation and citation omitted). Poro, thus makes it unnecessary for the jury to answer special questions and reveal under which theory they convicted the defendant. See Commonwealth v. Plunkett, 422 Mass. 634, 637-640 (1996) (general rule that when case submitted to jury on more than one theory, where evidence supports conviction under only one theory, general guilty verdict must be reversed).
A conviction of assault under a theory of attempted battery requires the Commonwealth to prove that the defendant "intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so." Commonwealth v. Melton, 436 Mass. 291, 295 (2002). A defendant's "intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial." Commonwealth v. Stewart, 411 Mass. 345, 350 (1991), quoting from Commonwealth v. Casale, 381 Mass. 167, 173 (1980). Intent can be inferred "from the actual commission of the felonious act, as well as from the circumstances attending the act, and from the conduct and declarations of the defendant." Commonwealth v. Lee, 460 Mass. 64, 68 (2011) (quotations omitted). Additionally, a defendant's threat to commit a crime is probative of his intent to commit that crime. See Commonwealth v. Carriere, 470 Mass. 1, 11 (2014) (defendant's statement probative of his later intent to commit that crime).
In this case, the jury were presented with sufficient evidence to reasonably conclude that the defendant had the intent to commit an attempted battery. The defendant and the victims had a history of feuding, including at least one violent physical altercation, in addition to threats exchanged between the various parties. The defendant told the police that if his family was not respected, he would have no choice but to retaliate. On the day of the shooting, J.S.'s brother had chased the defendant's girl friend. Later that day, the defendant approached J.S., showed him a firearm, and told him it was "for your brother." An hour later, shots were fired into the victim's living room, and J.S.'s sister immediately looked outside and observed the defendant tucking a firearm into his pocket. Taking this evidence together as a whole in the light most favorable to the Commonwealth, a reasonable jury could conclude that the defendant intended to commit a battery on each of the victims by firing a gun into the home. Therefore, since the evidence could support a finding beyond a reasonable doubt that the defendant committed an attempted battery, the judge did not err in instructing the jury on that theory. See Commonwealth v. Ferreira, 417 Mass. 592, 598 (1994) (if evidence supports theory of guilt, judge must give instruction on that theory).
The fact that J.S.'s brother was not in the living room when the defendant fired shots into the house is of no moment. "We have never required that a defendant's intent be directed at the precise victim of the crime. Rather, we have long recognized the concept of 'transferred intent' in situations where the defendant's conduct harms a person other than the intended victim." Commonwealth v. Melton, 436 Mass. 291, 296 (2002).
See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
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Judgments affirmed.