Opinion
No. 15–P–672.
10-24-2016
COMMONWEALTH v. Sharvin SANDS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Sharvin Sands, appeals from his conviction of malicious destruction of property, exceeding $250, in violation of G .L. c. 266, § 127. First, the defendant argues that there was insufficient evidence to prove that he, as a joint venturer, committed the offense of wilful and malicious destruction of property. Second, the defendant contends that the trial judge abused his discretion by ordering restitution without sufficient evidence to rationalize the restitution award. We affirm.
Background. We summarize the facts the jury could have found, in the light most favorable to the Commonwealth. Commonwealth v. Miranda, 441 Mass. 783, 784 (2004).
On May 4, 2013, Anthony Trabal, Sr. (Senior), a retired Springfield police officer, gave his son Anthony Trabal, Jr. (Junior), a high school graduation party. The news of the event spread through social media, making the crowd larger than expected and including some attendees unknown to the celebrant. Around 11:00 P.M., thirty to forty youths began rushing out of the house. Senior followed the crowd outside to ensure that they did not hang around the front yard. While outside, he noticed an injured young man being assisted as he was holding his stomach and bleeding.
Prior activity had elicited a complaint from a neighbor earlier that evening.
Senior's attention then turned to the defendant, Sharvin Sands, who was “riling up the guests” and, in particular, urging six to ten males with him to rush the house. Senior heard the group say that one of their friends had gotten hurt and they believed that the person that did it was still inside the house. He then saw the defendant pick up a brick that was holding down the basketball hoop, as did some of his companions. Both Senior and Junior attempted to defuse the situation by explaining to the group that only family was left inside the house. As some of Junior's friends came outside, someone from the defendant's group said, “That's him.”
Senior testified that he observed at least eight to ten people with objects in their hands.
The defendant and his group then started rushing toward the door of the house. Senior tried to intercede by holding his arm up to stop the group, and told his son to go into the house. However, as soon as Junior turned to go inside, Senior observed the defendant strike his son on the back of the head with a brick, causing him to immediately fall to the ground and lose consciousness. The defendant attempted to get closer to punch Junior, and Senior threw himself over his son to protect him. As this was occurring, Senior heard people rushing into the house, screaming, and fighting, as well as windows breaking as if the house was being hit with bricks.
After the incident had neutralized, Senior went to the police station and spent a few hours looking through more than 1,500 photographs on a computer to identify any of the attackers. Although Senior did not identify anyone from these photographs, he then looked at smaller pages of photographs and picked the defendant as the person who struck his son. Police later showed Junior a photograph array, without his father present, and he also selected the defendant's photograph as the attacker. At trial, the defense's theory was misidentification. The defense presented witnesses who were friends of the defendant and testified that the defendant helped his wounded friend after he was stabbed and remained in the street, merely observing the erupting commotion.
Discussion. 1. Sufficiency of evidence. The defendant argues that the trial judge erred in denying his motion for a required finding of not guilty on the charge of wilful and malicious destruction of property, as a joint venturer, because there was insufficient evidence to prove the Commonwealth's case. Under a theory of joint venture, the Commonwealth must show that “the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense” beyond a reasonable doubt. Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009). To prove malicious destruction of property, the defendant's actions must be both “wilful” and “malicious.” Commonwealth v. Armand, 411 Mass. 167, 170–171 (1991), citing G.L. c. 266, § 127. The term “ ‘wilful’ means intentional and by design in contrast to that which is thoughtless or accidental,” whereas, “ ‘[m]alice’ ... refers to a state of mind of cruelty, hostility or revenge.” Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 443 (1983).
The Commonwealth must also prove that the value of the property destroyed exceeded $250; however, the defendant does not raise an issue concerning the sufficiency of the Commonwealth's evidence as to this element.
Malice has also been defined as conduct that possessed “such a spirit of hostility and ill will against the property and person of anyone, whoever he was, if he stood in the way, or barred the progress of [the defendant].” Commonwealth v. Hosman, 257 Mass. 379, 385 (1926).
Here, the Commonwealth presented evidence that the defendant urged his companions to rush the house, by making statements such as “let's get him,” and follow his example of striking down the victim with a brick in order to force his way into the Trabal home to take revenge on the person who stabbed their friend. There was also testimony of gratuitous and excessive acts of violence to the victim's property such as smashing of the front door and breaking of the front and side windows of the house when the front door was open. Therefore, as the trial judge found, “the jury could reasonably infer that the damage to the property occurred from members of the group attempting to enter the property having been encouraged to do so by the defendant,” demonstrating that the defendant shared a wilful and malicious intent to damage the property. See Commonwealth v. Braley, 449 Mass. 316, 320 (2007) (joint venture theory “may be prove[n] by circumstantial evidence”); Commonwealth v. Gordon, 82 Mass.App.Ct. 227, 233 (2012) (“It was for the fact finder ... to determine whether the defendant's actions were malicious”). The defendant's conduct and resulting injury to the property was therefore “not [merely] the adventitious by-product of a wholly discrete criminal enterprise.” Commonwealth v. Wynn, 42 Mass.App.Ct. 452, 456 (1997). Compare Gordon, supra (“the destruction here was not incidental to some other venture or purpose”) with Armand, supra (where defendant was not seen participating in acts that caused damage and where damage caused was ancillary to defendant's and colleagues' principal goal).
2. Restitution. The defendant argues that the trial judge abused his discretion in ordering restitution because there was insufficient evidence to support the restitution award. The trial judge has the authority “to order restitution in a criminal case” pursuant to his “power to order conditions of probation under G.L. c. 276, §§ 87, 87A, and G.L. c. 279, § 1.” Commonwealth v. McIntyre, 436 Mass. 829, 833 (2002). In conducting restitution hearings, a judge may “make factual determinations relevant to the restitution award.” Commonwealth v. Denehy, 466 Mass. 723, 738 (2014). The payment of restitution is limited to “economic losses caused by the conduct of the defendant and documented by the victim.” Commonwealth v. Rotonda, 434 Mass. 211, 221 (2001). The procedure used to calculate the restitution order “must be reasonable and fair.” Commonwealth v. Nawn, 394 Mass. 1, 7 (1985).
At the restitution hearing, Senior testified that the cost of repairing the damage to his home included $500 for a front door at Home Depot, approximately $189 to replace each window, and $900 that he paid to replace the bay window, and that he received an estimate for $400 to sand and stain the floor. This totaled approximately $2,367. The trial judge found “that the Commonwealth established by a preponderance of evidence that the cost to repair the damage to Anthony Trabal's property for which the defendant was responsible was $2,000.” See Commonwealth v. Buckley, 90 Mass.App.Ct. 177, 185 (2016) (“In making an award of restitution, it is widely accepted that some degree of approximation is permitted” [quotations omitted] ); Commonwealth v. Casanova, 65 Mass.App.Ct. 750, 756 (2006) (accepting “factual findings supported by the record, as the judge was in the best position to determine matters of credibility”). The trial judge further found that the defendant did not present any evidence to the contrary. See Commonwealth v. Williams, 57 Mass.App.Ct. 917, 917 (2003) (noting “defendant had the opportunity to cross-examine the owner ... and to submit evidence [for rebuttal] if he wished” but “[n]o more was required”). The restitution order was therefore fairly and reasonably based on evidence adduced at the hearing.
Senior testified that at least three windows were damaged.