Opinion
SJC–10891.
2012-03-9
COMMONWEALTH v. Michael MULLER.
Estera Halpern, Brookline, for the defendant. Hallie White Speight, Assistant District Attorney, for the Commonwealth.
Estera Halpern, Brookline, for the defendant. Hallie White Speight, Assistant District Attorney, for the Commonwealth.
RESCRIPT.
After a jury trial, the defendant was convicted of assault by means of a dangerous weapon, G.L. c. 265, § 15B ( b ), and armed robbery, G.L. c. 265, § 17, based on evidence that the defendant entered a convenience store, approached the cashier, and offered to “split the money” in the cash register with the cashier. When the cashier refused, the defendant removed a handgun from his jacket, placed the handgun on the counter, and demanded money. The cashier complied. The Appeals Court affirmed the convictions in an unpublished memorandum and order pursuant to its rule 1:28. Commonwealth v. Muller, 77 Mass.App.Ct. 1118, 2010 WL 3269796 (2010). We granted the defendant's application for further appellate review, limited to the question whether the convictions of armed robbery and assault by means of a dangerous weapon were duplicative. We affirm.
For the reasons explained in Commonwealth v. Anderson, 461 Mass. 616, 963 N.E.2d 704 (2012), in determining whether convictions are duplicative, “we adhere to the elements-based approach, and reject the closely related conduct approach.” Id. at 634, 963 N.E.2d at 719, citing Commonwealth v. Vick, 454 Mass. 418, 433–435, 910 N.E.2d 339 (2009). Because “armed robbery has a required element—the theft of money or property—that is not required to prove assault by means of a dangerous weapon, and assault by means of a dangerous weapon has a required element—the use of a dangerous weapon to commit the assault—that is not required to prove armed robbery,” Commonwealth v. Anderson, 461 Mass. at 633, 963 N.E.2d at 718, the two convictions are not duplicative.
We do not consider the defendant's claim that, in light of Commonwealth v. Santos, 440 Mass. 281, 797 N.E.2d 1191 (2003), this holding results in an ex post facto violation. The claim was not made in the Superior Court, in the Appeals Court, or in the application for further appellate review.
Judgments affirmed.