Opinion
No. 11–P–191.
2013-01-18
COMMONWEALTH v. Daniel ATOCHA.
By the Court (GRASSO, VUONO & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant and two codefendants were convicted of “tagging” property in violation of G.L. c. 266, § 126B. On appeal, the defendant challenges the sufficiency of the evidence and claims that the judge erroroneously instructed the jury on the elements of the offense. We affirm.
The evidence, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), permitted the jury to find the following facts. Around midnight on June 20, 2009, the defendants entered the lobby of the Seaport Hotel in Boston. Upon learning that the hotel restaurant was closed, they became argumentative and were asked to leave. As the defendants walked away from the hotel toward the World Trade Center T Station (T station), they engaged in various acts of vandalism including pulling out a potted plant located near the hotel entrance, scratching one of hotel's plate glass windows, and smashing the side-view mirrors of cars parked on the street. These acts were observed by three security officers employed by the Seaport Hotel, who had followed the defendants. The security officers then saw all three defendants write on the walls of the T Station and newspaper boxes with a silver marker. The writing was photographed by the police and subsequently examined by the Commonwealth's expert witness, who testified that the writing in question had been applied by a paint marker, and that, based on her training and experience, the writings were “tags.”
The defendant contends that the evidence is insufficient because no one particular writing or “tag” could be attributed to him rather than to one of his codefendants. Even if we were to conclude, which we do not, that the evidence was insufficient in this regard, the defendant's argument is unavailing because the evidence sufficed to establish that the defendant “join [ed] together with a group” to tag property. See G.L. c. 266, § 126B.
The defendant next argues that the evidence was insufficient because it failed to establish that the “tags” were applied with paint as opposed to ink or some other medium. This assertion ignores the testimony of the Commonwealth's expert, who explicitly described the markings as having been applied with paint.
We are also unpersuaded by the defendant's claim that the judge's instructions to the jury created a substantial risk of a miscarriage of justice. To the contrary, the instructions, which mirrored the statute, set forth the elements of the offense including the element of intent. We perceive no error let alone a substantial risk of a miscarriage of justice.
Judgment affirmed.