Opinion
14-P-1528
10-07-2015
COMMONWEALTH v. ANGELO PRECIADO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a District Court jury trial, the defendant was found guilty of breaking and entering with intent to commit a misdemeanor, and wanton destruction of property over $250. On appeal, he argues: (1) the Commonwealth presented insufficient evidence that the value of the property damaged exceeded $250; (2) the judge erred by not giving the jury an instruction on accident; and (3) the judge failed to define the elements of trespass during the jury instructions. We affirm.
The defendant originally was charged with breaking and entering a dwelling house with intent to commit a felony. However, the judge ruled that this count would go to the jury on the reduced charge of breaking and entering with intent to commit a misdemeanor.
Background. The jury could have found the following facts. On August 3, 2013, the defendant texted and telephoned the victim, his former girl friend, several times, asking to come over to talk with her. The victim, who had ended their romantic relationship approximately three weeks earlier, told the defendant that she did not want to talk to him, but the defendant went to her home anyway. When the defendant arrived at the back door to her home and yelled for her to let him inside, the victim went into her daughter's bedroom with her three children, locked the door, and called the police.
The defendant continued to bang on the back door, which was closed and locked, and had a single, large window pane set into decorative latticework. From her daughter's locked bedroom, the victim heard the sound of glass breaking. The defendant then entered the apartment and began to bang on the bedroom door. The victim called the police again.
When police officers arrived at the scene, they found the defendant on the porch. He appeared intoxicated, and had lacerations and "a lot of blood" on his hands and arms. The officers observed that there was "a lot of glass and debris" on the porch, and that the back door was open. The window was "smashed," the woodwork was torn from the door frame, and the plaster on the interior of the door frame was damaged.
The defense was that the victim broke the window and framed the defendant. The defendant testified on his own behalf as follows. The victim asked him to come to her home that evening and, when he knocked on the back door, she came to the door and broke the window. Then, when he entered the home to ask the victim what was wrong, the victim ran into the bedroom. Through the door, she told him that the police were downstairs and that he was going to jail. The defendant denied getting cut by the glass and said that he just had scratched himself.
Discussion. 1. Sufficiency of evidence of value. The defendant argues that the Commonwealth failed to introduce sufficient evidence that the property damage exceeded $250. We disagree. The jury heard testimony from the victim and the responding officers about the "heavy" damage to the back door and surrounding wall. In addition, the Commonwealth introduced photographs showing substantial damage to the door and door frame.
"Circumstantial evidence is competent to establish guilt beyond a reasonable doubt, and reasonable inferences may be drawn from the evidence." Commonwealth v. White, 452 Mass. 133, 135 (2008) (citation omitted). Here, the evidence permitted the jury reasonably to infer, based on their common sense and experience, that the value of the destroyed property, along with labor to repair it, exceeded $250. See Commonwealth v. Muckle, 59 Mass. App. Ct. 631, 643 (2003).
2. Accident instruction. The defendant argues that he should be granted a new trial on the count for wanton destruction of property, because the judge erred in denying his request for an instruction on accident. However, on the state of the evidence, no such instruction was required. The victim testified that the defendant was yelling and banging on her back door and that she heard the sound of breaking glass. The defendant testified that he witnessed the victim break the window. Either way, the evidence did not support a finding that the defendant broke the window by accident.
The defendant argues that the jury could infer from the evidence of his intoxication that he did not intend to damage the door. However, the offense of wanton destruction of property is a general intent crime. Commonwealth v. McDowell, 62 Mass. App. Ct. 15, 24 (2004). The Commonwealth was required to prove only that the defendant's conduct was indifferent to or in disregard of probable consequences, not that he specifically intended to cause the damage. See ibid.
In any event, even if accident was a live issue, the defendant essentially got what he desired: the judge instructed the jury that for the defendant to be found guilty of the offense, he "must have intended his act in the sense that it didn't happen accidentally."
3. Elements of misdemeanor. The defendant's final argument is that the judge erred in failing to instruct the jury on the elements of the misdemeanor associated with the count for breaking and entering with the intent to commit a misdemeanor. The defendant did not object to the absence of such an instruction, and we therefore review only to determine whether there was any error that created a substantial risk of a miscarriage of justice. Commonwealth v. Willard, 53 Mass. App. Ct. 650, 656 (2002).
Here, there was no error, and hence no substantial risk of a miscarriage of justice. The judge followed the model jury instructions and specified that the underlying misdemeanor was trespass. The judge was not required to define the specific elements of that offense. Commonwealth v. Scott, 71 Mass. App. Ct. 596, 603 n.8 (2008).
Judgment affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 7, 2015.