Opinion
No. 15–P–1704.
11-03-2016
COMMONWEALTH v. JOSEPH L. DiCARLO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of breaking and entering with the intent to commit a misdemeanor, and violation of an abuse prevention order. On appeal, he raises various claims in support of vacating his convictions, none of which has merit. We affirm.
The defendant was originally charged with breaking and entering with the intent to commit a felony, but the Commonwealth amended this charge prior to trial.
1. Sufficiency of the evidence. The defendant claims that both of his convictions must be reversed because there was insufficient evidence that he had knowledge of the abuse prevention order or that he intended to trespass or commit a larceny. We disagree. In considering claims of insufficient evidence, this court reviews the evidence in the light most favorable to the Commonwealth to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (internal quotation omitted). Evidence is insufficient if it requires “pil[ing] inference upon inference or conjecture and speculation.” Corson v. Commonwealth, 428 Mass. 193, 197 (1998), quoting from Commonwealth v. Mandile, 403 Mass. 93, 94 (1988).
The defendant contends that he had no knowledge of the abuse prevention order, and that without that knowledge, he could not have violated that order. At trial, Sergeant Schlieman testified that he had served a copy of the order in hand to the defendant on March 13, 2009, and that he knew it was the defendant because the individual identified himself as Joseph Dicarlo. The defendant points to Schlieman's inability to identify him in court as proof that the defendant was not the individual who received service. However, the jury were entitled to credit Schlieman's testimony that he served the defendant, which was also supported by the fact that the individual identifying himself as the defendant was present at the defendant's known residence. See Commonwealth v. Platt, 440 Mass. 396, 401 (2003) (credibility determinations rest with jury). That Schlieman did not seek identification from the defendant or that he could not be certain it was the defendant in court, goes only to the weight of the evidence, not to its sufficiency.
Similarly, the defendant's contention that there was insufficient evidence to support the jury's guilty verdict for his breaking and entering with the intent to commit a misdemeanor is also misplaced. The defendant does not dispute that he broke into and entered 1495 River Street. Instead he claims that his conviction must be reversed due to insufficient evidence of his intent to trespass or commit a larceny, the misdemeanors the Commonwealth presented. There was sufficient evidence that the defendant was in fact trespassing when he entered 1495 River Street as the abuse prevention order stated he stay away from that residence, as well as his having to break into the residence to enter. Alternatively, the jury could also reasonably infer that when a person breaks and enters into a house, in either the daytime or nighttime, he intends to steal. See Commonwealth v. Ronchetti, 333 Mass. 78, 81 (1955) ; Commonwealth v. Noonan, 48 Mass.App.Ct. 356, 361–362 (1999).
The inquiry we make is “whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding.” Commonwealth v. Brown, 401 Mass. 745, 747 (1988). There was enough evidence presented to permit the jury to reasonably make these inferences and find the defendant guilty of both counts.
2. Jury instruction. The defendant asserts that the trial judge should have sua sponte given the jury an intoxication instruction. As the defendant did not request such an instruction, we review to determine whether the judge was required to give an intoxication instruction sua sponte and, if so, whether this omission created a substantial risk of a miscarriage of justice. The defendant did not raise intoxication as a defense at trial. The evidence, viewed in the light most favorable to the defendant, did not show “debilitating intoxication” that could support a reasonable doubt whether the defendant was capable of forming the requisite criminal intent, and therefore did not warrant a voluntary intoxication instruction. The judge did not err by not so instructing. See Commonwealth v. James, 424 Mass. 770, 789 (1997).
The evidence showed that upon the arrival of the police, the defendant tried to evade them by crouching in a corner, was able to provide the police with his identifying information, and exhibited a level of cognitive function not consistent with debilitating intoxication.
3. Prior bad acts. The defendant also claims that the judge abused her discretion in allowing the testimony of his sister in regards to their hostile relationship and the abuse prevention order to go beyond the permissible scope, resulting in prejudicial error. We disagree.
“Determinations of the relevance, probative value, and prejudice of such evidence are left to the sound discretion of the judge, whose decision to admit such evidence will be upheld absent clear error.” Commonwealth v. Robidoux, 450 Mass. 144, 158–159 (2007). The judge determined that the evidence of the defendant's hostile relationship with his sister was admissible to demonstrate the nature of that relationship and the reasons for her obtaining an abuse prevention order against him. The judge explicitly prohibited much of the more inflammatory evidence, such as prior bad acts involving another sister and physical violence. Any potential prejudice was also guarded against by the judge's limiting instruction immediately following the testimony. Even if the testimony at trial exceeded what the judge intended, it was not improper. See Commonwealth v. Gordon, 407 Mass. 340, 351 (1990) (evidence of defendant's hostile behavior toward victim proper for jury to consider). If it was improper, the defendant lodged no objection to the limiting instruction.
The defendant's conviction of violation of an abuse prevention order is affirmed. The defendant's conviction of breaking and entering with the intent to commit a misdemeanor is affirmed, but his sentence for that conviction is vacated, and the case is remanded to the trial court for resentencing.
The defendant was sentenced to eighteen months in the house of correction, suspended for two years, concurrent on both counts. However, the maximum sentence for breaking and entering with the intent to commit a misdemeanor is six months. Accordingly, the defendant will need to be resentenced on this count.