Opinion
16-P-20
03-09-2017
COMMONWEALTH v. Robert J. SYLVIA, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Robert J. Sylvia, Jr., appeals after his convictions of resisting arrest and disorderly conduct. He argues that the trial judge incorrectly instructed the jury on the knowledge element of resisting arrest and that the evidence of disorderly conduct was insufficient. We affirm judgment on the charge of resisting arrest and reverse the judgment on the charge of disorderly conduct.
Resisting arrest instructions . The judge instructed the jury nearly verbatim from Instruction 7.460 of the Criminal Model Jury Instructions for Use in the District Court (2009). The defendant now contends that the instructions did not adequately convey that the defendant must knowingly prevent or attempt to prevent his arrest. Because the defendant did not object at trial, we review any errors for a substantial risk of a miscarriage of justice. Commonwealth v. Alphas , 430 Mass. 8, 13 (1999).
The charge correctly stated the knowledge element. The judge instructed that "a person commits the crime of resisting arrest, if he knowingly prevents or attempts to prevent a police officer acting under color of his official authority from [e]ffecting an arrest of himself." The judge stated twice—both before and after explaining that the knowledge element also extended to whether the person making the arrest was a police officer—that the Commonwealth must prove "that the defendant knew at the time he was acting to prevent an arrest by a police officer acting under color of his official authority" (emphasis supplied). See Commonwealth v. Lawson , 46 Mass. App. Ct. 627, 629-630 (1999) ("We view the placement of ‘knowingly’ as introducing a scienter element not only with respect to the prevention of an arrest, but more broadly, with respect to the prevention of an arrest by ‘a police officer, acting under color of his official authority’ "), quoting from G. L. c. 268, § 32B, inserted by St. 1995, c. 276. There was no error and therefore no substantial risk of a miscarriage of justice.
The defendant further argues that the instructions were flawed because they did not explain that the knowledge requirement also applied to whether he knowingly threatened to use physical force against the arresting officers. We disagree. The statute recognizes two means of knowingly preventing or attempting to prevent an arrest: "(1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another." G. L. c. 268, § 32B(a ). This aspect of the resisting arrest statute solely addresses the means by which a defendant can resist. See, e.g., Commonwealth v. Maylott , 65 Mass. App. Ct. 466, 469 (2006) ("active, physical refusal to submit to the authority of the arresting officers" can constitute resisting arrest, whereas "purely passive conduct" may not). As the judge correctly instructed, the knowledge requirement pertains to whether the defendant knowingly acted to resist arrest, not to the means he used to do so. There was no error.
Sufficiency of evidence of disorderly conduct . The defendant contends that the evidence was insufficient to support a conviction of disorderly conduct. To prove disorderly conduct, the Commonwealth must establish that the defendant, "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof," either (1) engaged "in fighting or threatening, or in violent or tumultuous behavior"; or (2) created "a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." Commonwealth v. Chou , 433 Mass. 229, 232 (2001) (quotation omitted). The defendant argues that the evidence was insufficient to establish that his conduct was violent or tumultuous, that he created a hazardous or physically offensive condition, or that he recklessly created a risk of public annoyance, inconvenience, or alarm. We review the evidence in the light most favorable to the Commonwealth to determine whether any rational jury could have found the defendant guilty beyond a reasonable doubt. Commonwealth v. Latimore , 378 Mass. 671, 677 (1979).
The defendant's disorderly conduct conviction was originally placed on file. Absent exceptional circumstances, charges placed on file with a defendant's consent cannot be appealed. Commonwealth v. Delgado , 367 Mass. 432, 438 (1975). A conviction may be appealed after sentencing. Ibid . Here, we issued an order giving the defendant the option to withdraw his appeal of the disorderly conduct conviction or to move for sentencing on that charge. The defendant chose the latter course, was sentenced, and timely appealed. The judgment is now properly before us.
"Because the [defendant] did not renew his motion for a required finding of not guilty after he presented his defense, ‘we limit our sufficiency analysis to the state of the evidence at the close of the Commonwealth's case.’ "Commonwealth v. Morris M ., 70 Mass. App. Ct. 688, 691 n.3 (2007), quoting from Commonwealth v. Sudderth , 37 Mass. App. Ct. 317, 318 (1994).
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We agree that the evidence was insufficient to find that the defendant had engaged in fighting, threatening, violent, or tumultuous behavior. Tumultuous behavior is characterized as "involving riotous commotion and excessively unreasonable noise so as to constitute a public nuisance." Commonwealth v. A Juvenile , 368 Mass. 580, 597 (1975). The evidence showed that the defendant spoke loudly to the officers and used obscenities, but speech alone does not constitute disorderly conduct. Commonwealth v. Johnson , 36 Mass. App. Ct. 336, 338 (1994). Nor does the evidence suggest that the defendant's arm flailing constituted more than "a physical manifestation of his agitation." Commonwealth v. Lopiano , 60 Mass. App. Ct. 723, 725-726 (2004) (defendant did not engage in tumultuous behavior when he shouted loudly at police and flailed his arms). Compare Commonwealth v. Carson , 10 Mass. App. Ct. 920, 921 (1980) (very loud drunken defendant who attracted crowd of fifty people and ran around college campus to escape police had exhibited tumultuous behavior); Commonwealth v. Sinai , 47 Mass. App. Ct. 544, 548-549 (1999) (defendant who attempted to hit two police officers and attracted crowd of twenty people had engaged in tumultuous behavior).
The evidence is also insufficient to find that the defendant's actions created a hazardous or physically offensive condition. Examples of hazardous or offensive conditions include the "throwing of ‘stink bombs,’ the strewing of garbage, nails, or other noxious substances in public passageways, turning off the lights in a theatre, and like conduct creating a hazard to the public safety." Commonwealth v. A Juvenile , supra (quotation omitted). Although the officers' testimony indicates that the defendant made it more difficult for patrons to access the front door of a convenience store, the evidence does not suggest that the defendant's conduct rose to the level of a public hazard. To the contrary, patrons were still coming and going during the arrest.
Conclusion . The judgment on the charge of resisting arrest is affirmed. On the charge of disorderly conduct, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.
So ordered .
Affirmed in part; vacated and judgment entered in part .