Opinion
10-P-1008
09-09-2011
10-P-1009 COMMONWEALTH v. NICK N., a juvenile (and a companion case).
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 juveniles, Nick N. and Osmond O., were charged both as youthful offenders and as delinquents after an altercation they had with members of a rival street gang at a 7-Eleven convenience store in Lynn. Following a joint jury trial, Osmond was convicted as a youthful offender of assault by means of a dangerous weapon, G. L. c. 265, § 15B; he was found delinquent by reason of disorderly conduct, G. L. c. 272, § 53. Nick was convicted as a youthful offender as an accessory after the fact, G. L. c. 274, § 4.
Pseudonyms.
The Commonwealth withdrew complaints against both juveniles alleging delinquency by reason of unlawful possession of a firearm without a firearm identification card. The jury acquitted Nick on a charge alleging assault by means of a dangerous weapon (youthful offender) and a complaint of delinquency by reason of being a disorderly person.
On appeal, Nick (10-P-1008) and Osmond (10-P-1009) challenge (1) the sufficiency of the evidence, (2) the judge's supplemental jury instruction defining a dangerous weapon, and (3) the use of general verdict slips. In addition, Nick claims that the judge erred in denying his motion to dismiss the youthful offender indictment charging him with being an accessory after the fact. We affirm.
Facts. We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671 (1979). On December 27, 2008, the juveniles were chased into a 7-Eleven convenience store located on the corner of Fayette and Essex streets by four or five adult members of a rival street gang. The store was equipped with security cameras which recorded the following events. Just after he entered the store, Osmond drew and pointed what appeared to be a black handgun at one of the group, Johnny Loum. An object, similar in appearance to an ammunition clip, fell away from the bottom of the handgun as Osmond made motions consistent with 'racking' an automatic handgun. In response, Loum, his companions, and several customers ran out of the store.
'Racking consists of pulling the slide back on an automatic handgun to load a bullet into the chamber.' Commonwealth v. Rosado, 59 Mass. App. Ct. 913, 913 n.1 (2003).
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Meanwhile, at around the same time, a police officer on routine patrol pulled into the store's parking lot and observed the commotion caused by people running out of the 7-Eleven. The officer called for backup and went into the store. The store's surveillance recording depicts Osmond handing the object he had pointed at Loum (the purported firearm) to Nick, who placed it in the waistband of his pants. However, when the police pat frisked Nick, they did not find a weapon. The police then turned their attention to Osmond, who had been yelling at them while they were frisking Nick. Osmond was escorted from the store, leaving Nick alone inside. Shortly thereafter, Nick walked outside, paused at a trash barrel, and then walked over to Osmond. The police ordered Nick to leave the area, but he refused to go. Eventually, both Osmond and Nick were arrested and the police searched the store and the area by the trash for the gun, but were not able to find it.
Discussion. 1. Motion to dismiss the indictment. Prior to trial, Nick moved to dismiss the youthful offender indictment charging him with being an accessory after the fact on the grounds that his charged conduct -- taking and hiding a handgun -- did not amount to conduct involving the 'infliction or threat of serious bodily harm,' as required by the youthful offender statute. See G. L. c. 119, § 54, inserted by St. 1996, c. 200, § 2. Concluding that the 'alleged possession and disposing of the firearm' itself posed a threat of serious bodily harm to members of the public by 'put[ting] the firearm in a location easily accessible to any person,' the motion judge denied the motion.
We agree with the judge's analysis and conclude there is no merit to Nick's claim that the evidence before the grand jury was insufficient to support an indictment. Nick's reliance on Commonwealth v. Hoshi H., 72 Mass. App. Ct. 18 (2008), a case in which we held that the youthful offender statute is not satisfied by imputing a principal's violent acts to an alleged accessory after the fact is misplaced. Here, unlike the situation in Hoshi H., Nick himself engaged in conduct constituting a 'threat of serious bodily harm.' As such, there was no error in denying the motion to dismiss.
2. Jury instructions. The juveniles challenge the trial judge's supplemental jury instruction concerning the definition of a dangerous weapon. The instruction, which was given during the jury's deliberations in response to a question raised by the jury, informed the jury that 'an unloaded gun could be a dangerous weapon.' According to the juveniles, the instruction improperly mirrored the Commonwealth's theory of the case and relieved the Commonwealth of its burden of proving an essential element of the crime charged. We disagree.
Although it may have been preferable to avoid illustrating the operable legal principle -- what constitutes a dangerous weapon -- with the type of evidence -- a handgun -- at issue in this case, we cannot say the instruction constituted 'a conclusive directive by the judge' on the disputed issue of whether the object depicted in the video was a dangerous weapon. Commonwealth v. Pina, 430 Mass. 266, 275 (1999). The judge's use of the conditional 'could' was sufficient to prevent a reasonable juror from interpreting the instruction as such. Contrast Commonwealth v. Skinner, 408 Mass. 88, 94 (1990) (error where judge informed the jury 'not only that they could infer [an element of the charged offense] from certain subsidiary facts . . ., but that the finding of those facts . . . 'would constitute [the crime charged]'') (emphasis original). Accordingly, there was no error.
3. Sufficiency of the evidence. The juveniles claim that the evidence supporting Osmond's conviction of assault by means of a dangerous weapon and, derivably, Nick's conviction of being an accessory after the fact, was insufficient, because no firearm was introduced at trial. Absent production of the firearm, they argue, a rational juror could not conclude beyond a reasonable doubt that the object held by Osmond in the store was a dangerous weapon.
It is well established that circumstantial evidence is sufficient to prove any or all elements of an offense. See Commonwealth v. Grandison, 433 Mass. 135, 141 (2001). Viewed in the light most favorable to the Commonwealth, the evidence presented at trial, in particular the surveillance recording depicting Osmond holding what looks to be a handgun, constituted ample circumstantial evidence from which a rational juror could infer that the object wielded by Osmond either by its nature was, or through its use reasonably appeared to be 'capable of causing serious injury or death.' Commonwealth v. Powell, 433 Mass. 399, 401 (2001).
Osmond also argues that there was insufficient evidence to support a finding of disorderly conduct. Specifically, he claims that his conduct after the police arrived at the store did not amount to 'tumultuous' behavior. See Commonwealth v. Sholley, 432 Mass. 721, 728 (2000), cert. denied, 532 U.S. 980 (2001), discussing G. L. c. 272, § 53 . This argument is flawed in two respects. First, Osmond ignores evidence of his conduct preceding the arrival of the police, namely, that he openly brandished a firearm in a public place. Second, the argument ignores the fact that § 53 criminalizes behavior that 'create[s] a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.' Commonwealth v. Molligi, 70 Mass. App. Ct. 108, 111 (2007), quoting from Commonwealth v. Sholley, supra at 727 n.7. Thus, even if we were to assume that Osmond's conduct after the arrival of the police was insufficient, the evidence of his conduct inside the store preceding the arrival of the police warranted a finding of disorderly conduct on the theory that Osmond created 'a hazardous or physically offensive condition' affecting the public. See ibid.
4. Special verdict slip. The juveniles' final claim, that the absence of a special verdict slip for the charge of assault by means of a dangerous weapon requires reversal of their convictions, is foreclosed by our recent decision in Commonwealth v. Arias, 78 Mass. App. Ct. 429 (2010). In that case, which also involved a charge of assault by means of a dangerous weapon, we held that a special verdict slip was not required because the alternate methods of committing an assault, i.e., attempted battery or immediately threatened battery, are not separate 'theories,' but merely 'overlapping subcategories of a single element.' Id. at 433, quoting from Commonwealth v. Santos, 440 Mass. 281, 286 (2003).
Conclusion. In No. 10-P-1008 the judgment is affirmed. In No. 10-P-1009 the judgment and the adjudication of delinquency are affirmed.
So ordered.
By the Court (Cohen, Katzmann & Vuono, JJ.),