Opinion
21-P-512
04-06-2022
COMMONWEALTH v. Randy DIBIASIO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant, Randy Dibiasio, was convicted of breaking and entering in the daytime with the intent to commit a felony, in violation of G. L. c. 266, § 17 ; assault and battery by means of a dangerous weapon (shod foot) on a person sixty years of age or older, in violation of G. L. c. 265, § 15A (a ) ; assault and battery on an elderly or disabled person, in violation of G. L. c. 265, § 13K (a 1/2); strangulation or suffocation of another, in violation of G. L. c. 265, § 15D (b ) ; attempted arson of a building, in violation of G. L. c. 266, § 5A ; and assault and battery, in violation of G. L. c. 265, § 13A (a ). The victims were the defendant's father, Richard Dibiasio, whom we shall refer to as Richard, and his long-term partner, Kelly Young. On appeal, the defendant argues that the judge (1) abused her discretion in admitting two photographs of Richard's granddaughters that the defendant allegedly damaged by tearing out the girls’ eyes and (2) erroneously denied the defendant's motion for a required finding of not guilty on the attempted arson charge. He also argues that his conviction of assault and battery on an elderly or disabled person is duplicative of his conviction of assault and battery by means of a dangerous weapon on a person sixty years of age or older. We agree that these two convictions are duplicative but discern no abuse of discretion in the decision to admit the two photographs and no error in the denial of the defendant's motion for a required finding of not guilty on the attempted arson charge.
The jury returned verdicts of not guilty on charges of attempted murder, in violation of G. L. c. 265, § 16 ; assault and battery by means of a dangerous weapon (a counter) on a person sixty years of age or older, in violation of G. L. c. 265, § 15A (a ) ; and assault and battery by means of a dangerous weapon (a stove) on a person sixty years of age or older, in violation of G. L. c. 265, § 15A (a ), arising from the same incident. In addition, the judge declared a mistrial after the jury failed to reach a verdict on the charge of armed assault with intent to murder a person sixty years of age or older, in violation of G. L. c. 265, § 18 (a ). The Commonwealth subsequently filed a nolle prosequi as to that count.
Background. We summarize the facts the jury could have found as follows. At some point on March 18, 2016, the defendant broke into the home where Richard had lived with Young for many years. The home was a two-family residence, and the defendant previously had lived in the second-floor apartment. Richard and Young had been out to dinner and returned home at approximately 7:00 P.M. On entering the kitchen, Young noticed that at least one stove burner "was on full blast." Richard then saw the defendant, who did not have keys to the house and was not expected to visit. The defendant accused Richard of stealing his belongings and then punched Richard in the face. A violent struggle ensued. The defendant strangled Young and attempted to smother her with her coat while he kicked and punched Richard. Eventually, Young escaped and ran to a neighbor's house for help. Meanwhile, Richard armed himself with a knife in self-defense. The defendant attempted to force Richard's hand toward the defendant's neck and demanded that Richard kill him, but Richard resisted. When the police arrived, Richard was lying on the ground, badly injured. The defendant surrendered and was placed under arrest.
The police then searched the house and found several items out of place. Two baseball bats that had been stored in the basement had been moved to the living room and to a bathroom. Knives, a wrench, and a box cutter were found on the couch in the living room, and a container of gasoline and a bottle of lighter fluid were found at the foot of Richard and Young's bed. The police also found a "burnt down" cigarette underneath the bed. Neither Richard nor Young smoked cigarettes, but the defendant did. In addition, several personal items had been damaged, including a laptop and photographs of Richard's granddaughters. One photograph had been knocked off the wall and the glass shattered. Two other photographs had been defaced, with the area of the girls’ eyes torn out.
The defendant did not testify at trial, but, through cross-examination and argument, he admitted that he was addicted to drugs and ransacked the house while in the "throes of that addiction." However, he denied having any intent to harm Richard or Young and argued that he did not intend to set the house on fire.
Discussion. 1. Admission of the photographs. Prior to trial, the defendant filed a motion in limine seeking to preclude the Commonwealth from introducing the two photographs from which the eyes of girls’ faces had been torn out. After a hearing, the judge concluded that the evidence was relevant, but indicated that she would revisit the question of admissibility at trial. Ultimately, the judge ruled that the evidence was probative of the defendant's state of mind while he was in the home prior to the attack on Richard and Young, and the photographs were introduced over the defendant's objection.
The defendant argues that the judge abused her discretion in admitting the photographs because their probative value was substantially outweighed by the risk of unfair prejudice. The defendant also argues that the photographs were cumulative of other evidence of his "heightened agitation" and should have been excluded on that basis.
The defendant also contends, in passing, that the photographs reflected badly on his character and, as such, amounted to prior bad act evidence. This argument is not developed and appears to be advanced so that the judge's ruling is reviewed under the more exacting standard of admissibility that applies to prior bad act evidence. See Commonwealth v Crayton, 470 Mass. 228, 249 n.27 (2014). We need not address this issue as we conclude the photographs were properly admitted.
Because the defendant objected, we review "to determine whether any abuse of discretion resulted in prejudicial error." Commonwealth v. Martinez, 476 Mass. 186, 190 (2017). To be admissible, evidence must be relevant, and the judge must also consider whether the evidence has an undue prejudicial effect. See Commonwealth v. Carey, 463 Mass. 378, 387-388 (2012). While the photographs may well have tended to evoke an emotional response from the jury, that is not the extent of the question. Relevant evidence is not rendered inadmissible by its potential to arouse certain feelings in a jury. Rather, relevant evidence remains admissible if its probative value is not substantially outweighed by the danger of unfair prejudice. See id.
Here, the defaced photographs were relevant of the defendant's state of mind and his relationship with his family, which, in turn, were relevant to establish motive and intent. Furthermore, there was evidence that the defendant was under the influence of alcohol or drugs at the time of the events in question; as the judge observed, the defendant maintained that he was not capable of forming the intent to commit the crimes due to his agitated state. The jury could reasonably have inferred that the defendant was responsible for the damage to the photographs, and since the manner in which the photographs were damaged reflected anger and malice toward Richard, the evidence tended to negate the defendant's premise that he acted without any intent to harm Richard or Young.
Lastly, we do not view the evidence as unduly cumulative. Certainly, the defendant's physical violence against Richard and Young demonstrated his anger toward them, but the damage to the photographs reflected that anger in a different light. The Commonwealth was entitled to present a full picture of the events surrounding the incident, and because the probative value of the photographs was not substantially outweighed by the risk of unfair prejudice to the defendant, the photographs were properly introduced in evidence.
2. Sufficiency of the evidence for attempted arson. The defendant argues that the Commonwealth failed to prove that he had the requisite intent to commit attempted arson. The statute defines attempted arson as follows:
"The placing or distributing of any flammable, explosive or combustible material or substance or any device in or against any building, structure or property mentioned in the foregoing sections in an arrangement or preparation with intent eventually to wilfully and maliciously set fire to or burn such building, structure or property, or to procure the setting fire to or burning of the same shall, for the purposes of this section, constitute an attempt to burn such building, structure or property."
G. L. c. 266, § 5A. Thus, regarding the element of intent, the Commonwealth was required to prove that the defendant acted with "intent eventually to wilfully and maliciously set fire to or burn [the victims’ home] ... or to procure the setting fire to or burning of the same." Id. See Commonwealth v. Coutu, 90 Mass. App Ct. 227, 229-230 (2016). Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence amply supported the element of intent as defined by the statute.
First, gasoline and lighter fluid were found at the foot of Richard and Young's bed and a burnt cigarette was left underneath the bed. The jury could reasonably have concluded that the defendant placed those items under and around the bed after he broke into the home. The placement of these flammable materials in the bedroom and in close proximity to the bed itself supports a reasonable inference that the defendant willfully and maliciously intended to eventually set a fire. Second, the jury could reasonably have concluded that the defendant ignited at least one stove burner in the kitchen and left it "on full blast." This act supported a finding of a willful and malicious intent to set a fire as well. Finally, contrary to the defendant's assertion, the jury were not required to believe his version of events; rather, they could have permissibly rejected the notion that he was incapable of forming the requisite intent due to his consumption of alcohol and drugs and conclude, based on the evidence described above, that he willfully and maliciously attempted to set fire to the house.
3. Duplicative convictions. As the Commonwealth properly concedes, in the circumstances of this case, the conviction of assault and battery on an elderly person, i.e., person sixty years of age or older, is a lesser included offense of assault and battery by means of a dangerous weapon on a person sixty years of age or older. Where, as here, the jury were not instructed on the requirement of separate and distinct acts to support a conviction for a lesser included offense, the defendant's conviction of assault and battery on an elderly or disabled person must be vacated as duplicative of his conviction of assault and battery by means of a dangerous weapon on a person sixty years of age or older. See Commonwealth v. Kelly, 470 Mass. 682, 700 (2015).
Conclusion. The judgment on the indictment charging assault and battery on an elderly or disabled person (count 7) is vacated, the verdict on that indictment is set aside, and the indictment is dismissed. The remaining judgments of conviction are affirmed, the sentences thereon are vacated, and the matter is remanded for resentencing. See Commonwealth v. Ruggerio, 32 Mass. App. Ct. 964, 966 (1992).
Typically, "[t]he appropriate remedy for the imposition of duplicative convictions is to vacate both the conviction and sentence on the lesser included offense, and to affirm the conviction on the more serious offense" (citations omitted). Commonwealth v. Johnson, 75 Mass. App. Ct. 903, 904 (2009). Remanding for resentencing on the remaining convictions is an appropriate remedy, however, where, as here, the sentence for the vacated conviction ran concurrently with the sentences for the affirmed convictions. Commonwealth v. Ruggerio, 32 Mass. App. Ct. 964, 966 (1992).
So ordered.
Vacated and remanded