Opinion
16-P-496
03-03-2017
COMMONWEALTH v. PHU TRUONG.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions, after a jury trial, of accessory before the fact to home invasion, G. L. c. 274, § 2, and home invasion as a joint venture, G. L. c. 265, § 18C. He raises two issues on appeal. First, he argues that the evidence was insufficient to prove either crime beyond a reasonable doubt. Second, he argues that the convictions are duplicative and that, as a result, his conviction for being an accessory before the fact should be set aside. For the reasons set out below, we conclude that the evidence supported both convictions, but that the convictions were duplicative. We thus affirm the home invasion conviction, but vacate the conviction for accessory before the fact.
Background . We recite the evidence, together with the reasonable inferences to be drawn from it, in the light most favorable to the Commonwealth to determine whether the Commonwealth met its burden of proving the offenses beyond a reasonable doubt.
At approximately 1:00 a.m. on an evening in March of 2012, Ling Le called her friend, Binh Dao. Le had been in a fight with her boyfriend, Ho Huynh, the codefendant, and she needed a ride home from his apartment. Dao and her boyfriend, Vincent Dang (victim), immediately went to pick up Le on Granite Street.
As Le was getting into the car, the defendant pulled up, got out of his truck, and approached. All three occupants knew the defendant, who asked where Le was going. The victim drove away without responding. The defendant then called Dao, but she did not answer. He followed up shortly thereafter by sending her a text message that essentially stated: "[T]ell [your] fucking man I'm going to fuck his ass up. Yo, [he] fucking closed the door on me while I was trying to talk to you. Fucking disrespect me. You think I'm playing? I'll come to his house now and wait for his ass to come home."
After dropping Le off at her house, Dao and the victim returned to his home and prepared to go to bed. A few moments later, Huynh arrived, standing at the door with his hands hidden at his side, and looking angry and suspicious. True to his word, the defendant also arrived. Huynh barged through the door, pointed a gun at the victim, and told him not to "disrespect" him. He proceeded to strike the victim several times with the gun and a struggle ensued. The victim's sister tried to intervene, but the defendant threw her to the ground. He grabbed Huynh, telling him to leave, and the two men left the apartment together. On the way out, the defendant told the victim not to "disrespect [him] again." The victim responded that he had not disrespected him, at which point Huynh returned and again struck the victim with the gun. A shot went off, and the defendant and Huynh ran from the apartment and drove off together.
Discussion . Sufficiency of evidence . To be convicted of home invasion as a joint venture, the Commonwealth was required to prove that the defendant knowingly participated in the commission of the offense and shared the required criminal intent. Commonwealth v. Gorman , 84 Mass. App. Ct. 482, 487 (2013). Specifically, the Commonwealth had to prove that the defendant was present at the scene of the crime, with knowledge that Huynh intended to commit a home invasion, and by agreement, was willing and available to help Huynh if necessary. See Commonwealth v. Green , 420 Mass. 771, 779 (1995). The defendant does not dispute that the evidence was sufficient to establish that Huynh committed home invasion: namely, that Huynh knowingly entered the dwelling place of another person when he knew others were present, while armed with a dangerous weapon, and that he used force upon a person while in that dwelling. See G. L. c. 265, § 18C. Instead, the defendant argues that the evidence was insufficient to prove that he knew Huynh was armed or that he shared Huynh's intent.
We are not persuaded on either score. It is undisputed that the defendant knew Huynh was armed before Huynh reentered the apartment after the defendant's second warning not to "disrespect him." See Commonwealth v. Norris , 462 Mass. 131, 139-140 (2012). Furthermore, the evidence permitted the inference that the defendant, feeling slighted, arranged with Huynh to go together to "fuck [the victim's] ass up." Ordinary knowledge of human behavior would permit the jury to further infer that the victim would resist such a plan, especially when attempted in his own home. "Knowledge that a fellow joint venturer is armed may be inferred when, from the circumstances of the crime, a victim's resistance is reasonably to be anticipated such that the participants in the crime would have recognized the need for some means by which to overcome that resistance." Commonwealth v. Netto , 438 Mass. 686, 702-703 (2003). As to the defendant's intent, the sequence and timing of events easily could lead the jury to find that Huynh carried out the home invasion not only in coordination with the defendant but at his direction. The jury were not required to accept the implausible proposition that mere coincidence led Huynh to attack the victim at the same time and place as the defendant had announced he would do so.
For the same reason, the defendant's argument concerning the sufficiency of the evidence on the accessory before the fact conviction also fails. To prove the offense, the Commonwealth needed to establish that the defendant participated, by acts preceding the offense, in "counseling, hiring or otherwise procuring" the home invasion. Commonwealth v. Morrow , 363 Mass. 601, 609 (1973). The evidence showed that the defendant took offense after the victim did not answer his question as to where he was taking Le. He clearly and forcefully stated he would physically harm the victim and that he would soon do so at the victim's apartment. These threats were carried out with the help of Huynh, who arrived at the victim's apartment at essentially the same time as the defendant. The evidence was that the defendant left the scene in the same car with Huynh. A reasonable inference is that they arrived together in the same manner. As we have noted, the jury were not required to believe that Huynh's presence was accidental, but could rather conclude that it was arranged by the defendant to carry out his threat to attack the victim in his home.
Duplicative convictions . We conclude, as the Commonwealth concedes, that under Marshall v. Commonwealth , 463 Mass. 529, 534-537 (2012), the convictions are duplicative. We therefore, as the parties request, vacate the accessory before the fact conviction. The Commonwealth does not request that we remand for resentencing and we agree that there appears to be no need to remand for that purpose. The ten years' probation imposed on the accessory conviction was concurrent with the ten years' probation imposed on the home invasion conviction.
Conclusion . The judgment on the indictment charging accessory before the fact is vacated, the verdict is set aside, and the indictment is to be dismissed. The judgment on the indictment charging home invasion is affirmed.
So ordered .
Vacated and dismissed in part; affirmed in part.