Opinion
13-P-1268
12-22-2014
COMMONWEALTH v. TYRLL BLACKSHEAR.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of malicious destruction of property, arguing that his motion for a required finding of not guilty should have been allowed and that the judge improperly instructed the jury. We affirm.
Background. The jury could have found the following facts. Around 5:00 P.M. on July 7, 2012, Jose Caraballo (the victim) was watching television in his home when he heard voices outside. Caraballo looked out of his first-floor window and saw the defendant, whom he knew, standing behind his (the victim's) car. The defendant was standing on the driver's side of the car, which faced the window out of which Caraballo was looking. Caraballo watched as the defendant removed an object from a backpack he was carrying, looked around to see if anyone was watching, and moved from the back to the front of Caraballo's car using the object to scratch it. Caraballo confronted the defendant, who laughed and walked away. Caraballo received an estimate of nearly $1,300 to fix the damage.
Discussion. 1. Sufficiency of the evidence. We review the defendant's claim that the judge should have allowed his motion for a required finding of not guilty by analyzing the necessary elements of the crime charged and considering the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). To sustain a conviction of malicious destruction of property over $250, the Commonwealth must prove beyond a reasonable doubt that the defendant's actions were both wilful and malicious. Commonwealth v. Doyle, 83 Mass. App. Ct. 384, 388 (2013). See G. L. c. 266, § 127. "The terms wilful and malicious are not used redundantly[;] [t]hey convey different meanings within the context of criminal destruction of property." Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 443 (1983). While "[t]he word 'wilful' means intentional and by design in contrast to that which is thoughtless or accidental," malice "refers to a state of mind of cruelty, hostility or revenge." Ibid. "'[S]omething more than a deliberate intent to do wrong' must be shown to establish malice." Ibid., quoting from Commonwealth v. Hosman, 257 Mass. 379, 385 (1926).
The Commonwealth also must prove that the value of the property destroyed exceeded $250. The defendant does not challenge the sufficiency of the Commonwealth's evidence in this regard.
Here, there is little doubt from the evidence, under the Latimore standard, that the defendant's actions were "wilful." A rational jury could have concluded that the defendant's act of looking around to make sure no one was watching before scratching the defendant's car satisfied that intent. Similarly, a rational jury could have concluded that the defendant's intentional act of damaging the car of a person whom he knew, which act was not undertaken with any purpose other than to damage the car, coupled with the defendant's callous act of laughing at Caraballo when confronted by him, satisfies the element of "malice." Contrast Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 4 (2001) (insufficient evidence that damage to property was "more than a means to [the] end" of the theft of computers).
2. The jury charge. The defendant does not dispute that the judge charged the jury in accordance with the model jury instructions. Rather, he argues that the model jury instructions contain an incorrect statement of the law which violates the presumption of innocence and impermissibly shifts the burden of persuasion to the defendant. Because there was no objection at trial, we review for a substantial risk of miscarriage of justice. Ibid., and cases cited.
Specifically, the defendant challenges that portion of the instructions which allows a jury "to infer that a person ordinarily intends the natural and probable consequences of any acts that he does intentionally. You may draw such an inference, unless there is evidence that convinces you otherwise." Model Jury Instructions for Use in the District Court, Instruction 3.120 (2009).
The defendant's argument requires little discussion simply because no mandatory presumption is created by the instructions. The pertinent section of the charge begins, "As a general rule, it is reasonable to infer." See note 2, supra. There is nothing mandatory about this language, which conveys to the jury their duty to reason using the every day, normal cognitive processes of human beings. The next sentence in the instruction ("You may draw such inference, unless there is evidence that convinces you otherwise") does not impose a burden on the defendant to offer evidence contrary to the normal reasoning process. Rather, it advises the jury that they "may" draw such an inference. The word "may" necessarily conveys the option of choice; they "may" draw the inference but are under no obligation to do so. Even if we agreed with the defendant that the model jury instructions used in this case and in other courts of the Commonwealth contain erroneous statements of law (and we do not), the decision to modify the instructions is one best left to the Supreme Judicial Court. There was no risk of a miscarriage of justice in this case.
Judgment affirmed.
By the Court (Trainor, Grainger & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 22, 2014.