Opinion
No. 12–P–756.
2013-08-1
COMMONWEALTH v. Paul J. LAPIERRE.
By the Court (GRASSO, SIKORA & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At the conclusion of a jury-waived trial, a judge of the District Court found the defendant, Paul Lapierre, guilty of the offense of assault by means of a dangerous weapon (ADW). G.L. c. 265, § 15B( b ). The defendant has appealed on the ground that the evidence was insufficient to establish proof beyond a reasonable doubt of each of the elements of the offense. For the following reasons, we affirm the judgment.
Background. The judge received the following evidence from three witnesses: the victim, Rocco Vasile; Bedford police Officer Michael Sullivan; and Bedford police Officer John Busa. The defendant and Vasile both resided at a Veteran's Administration facility known as the Bedford Veteran's Quarters (BVQ). Approximately sixty persons lived at the BVQ; the first floor of the building contained, as common area, one kitchen and one game room; the second floor contained two kitchens and two game rooms. At about 8:00 P.M. on the evening of May 6, 2009, Vasile was cooking a meal in the downstairs kitchen. He observed a disturbance in the kitchen between the defendant and another resident. The defendant yelled to the second man that he did not belong in the downstairs kitchen because the man lived on the second floor. Vasile intervened as the defendant was chest-butting and pushing the second man and told the defendant that he had no authority to bar the second man from the downstairs kitchen. Vasile and the defendant became involved in pushing and shouting. The defendant then told Vasile (i) that Vasile did not know “who [he] was messing with”; and (ii) that he, the defendant, was going to “kick [Vasile's] ass.” The defendant then left the downstairs kitchen.
A few minutes later, the defendant returned to the downstairs kitchen with a closed blue utility folding knife in his hand. He kept the knife closed in his hand and at his side, and again told Vasile that he “didn't know who [he] was messing with” and that “he [the defendant] was going to stick [Vasile]” if Vasile gave him any more trouble. When Vasile stepped back and pointed to a security camera ostensibly recording the encounter, the defendant replied, in effect, that he did not care about the camera and again repeated that he was “going to stick [Vasile].” The video recording of part of the encounter came in evidence as an exhibit.
Vasile testified that he was concerned that the defendant would “stick” him with the knife. The encounter continued in the adjacent hallway. The defendant and Vasile exchanged some additional chest bumping. Other persons gathered and separated the two men. The defendant then left the kitchen. Approximately an hour later, Bedford police officers responded, visited the defendant in his room, interviewed witnesses, and placed the defendant under arrest. They found a blue-handled folding knife in the defendant's room. Vasile identified it as the knife with which the defendant had confronted him. The defendant, once under arrest, waived the exercise of his Miranda rights. He acknowledged that the blue folding knife belonged to him.
Analysis. At trial, the Commonwealth pursued the “threatened battery” theory of ADW. Its burden was to prove (1) that the defendant had engaged in objectively menacing conduct, and (2) that he had done so with the intent of causing apprehension of immediate bodily harm in the targeted victim. See Commonwealth v. Slaney, 345 Mass. 135, 138–139 (1962); Commonwealth v. Chambers, 57 Mass.App.Ct. 47, 49 (2003). On appeal, the defendant contends that the evidence was insufficient to establish either element (1) because he did not open or brandish the knife, but rather left it closed in his hand at his side; and (2) because he lacked the intent to cause present apprehension of immediate bodily harm, but merely communicated a threat of conditional future action.
1. Standard of review. Trial defense counsel did not present a motion for a required finding at the conclusion of the Commonwealth's case or at the conclusion of all the evidence. Mass.R.Crim.P. 25, as amended, 420 Mass. 1502 (1995). We therefore examine the claim of insufficiency of evidence under the standard of a substantial risk of a miscarriage of justice. Commonwealth v. McGovern, 397 Mass. 863, 867–868 (1986). To determine sufficiency, we ask whether the evidence, in the light most favorable to the Commonwealth, would permit any rational fact finder to conclude that the prosecution had established each element of the charged offense by proof beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979). See Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). In that process, the reviewing court does not weigh the supporting evidence against the conflicting evidence. Commonwealth v. Semedo, 456 Mass. 1, 8 (2010). It must resolve all issues of credibility in favor of the Commonwealth. See Commonwealth v. James, 424 Mass. 770, 785 (1997); Commonwealth v. Miranda, 458 Mass. 100, 113 (2010).
We therefore ask whether the evidence permitted the findings beyond a reasonable doubt (1) that the defendant had engaged in objectively menacing conduct, see Commonwealth v. Slaney, supra; Commonwealth v. Chambers, supra; (2) that the defendant had possessed the intent to inflict fear of imminent battery or apprehension of immediate bodily harm upon Vasile, Commonwealth v. Slaney, supra; Commonwealth v. Chambers, supra; and (3) that he had used a dangerous weapon to do so, see Commonwealth v. Burkett, 5 Mass.App.Ct. 901, 903 (1977); Commonwealth v. Nardi, 6 Mass.App.Ct. 180, 181–184 (1978). As to the third element, the apparent ability or capacity to injure, reasonably perceived through the eyes of the victim, is the test of the dangerous nature of the weapon. See Commonwealth v. Henson, 357 Mass. 686, 693–694 (1970); Commonwealth v. Mattei, 455 Mass. 840, 845–846 (2010). A final point of doctrinal importance is that the targeted person need not have experienced actual fear; it is sufficient that a reasonable person would have experienced actual fear. See Commonwealth v. Porro, 458 Mass. 526, 530–531 (2010). The defendant's private intent not to cause actual injury to the targeted person will not constitute a defense. Commonwealth v. Enos, 26 Mass.App.Ct. 1006, 1008 (1988).
2. Sufficiency of the evidence. The following elements of evidence support findings both (a) that the defendant engaged in objectively menacing conduct and (b) that he intended to cause fear of imminent battery to Vasile. (i) In the opening encounter he threatened to “kick [Vasile's] ass.” (ii) He engaged in chest butting. (iii) Perhaps most significantly, he left the kitchen and then returned, an indication of deliberateness and willfulness. (iv) He returned with a knife, albeit folded and at his side, but nonetheless an act of purposeful escalation of hostility toward Vasile. (v) He said, “I'll stick you,” an obvious reference to the knife presently in his hand and not a reference to some future encounter. (vi) Vasile's reference to the video recording did not deter him. (vii) He continued thereafter to engage in further chest butting and verbal abuse, including an additional threat to “stick you.”
Finally, he acted with a dangerous weapon. A knife is an inherently dangerous weapon. Its closed posture at his side left it immediately available for opening and brandishing. A reasonable person would appreciate its dangerous capacity. Mere possession of a weapon with that capacity is sufficient to fulfil the dangerous weapon element of the criminal charge. See Commonwealth v. Delgado, 367 Mass. 432, 436–437 (1975); Commonwealth v. Foley, 17 Mass.App.Ct. 238, 239 (1983) (credible threat of the use of an unseen weapon satisfies the required element).
The Commonwealth carried its burden of proof beyond a reasonable doubt on each element of the charged offense.
Judgment affirmed.