Opinion
No. 12–P–550.
2013-04-11
COMMONWEALTH v. Monica BITAHI.
By the Court (GRASSO, BROWN & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant argues that the Commonwealth's evidence was insufficient to support her conviction of threatening to commit a crime beyond a reasonable doubt.
See G.L. c. 275, §§ 2 & 4. Upon review of the briefs and record appendix, we conclude that the evidence was sufficient to support the judge's finding beyond a reasonable doubt that the defendant was guilty of threatening to commit a crime.
The defendant was also convicted of negligent operation of a motor vehicle, in violation of G.L. c. 90, § 24(2)(a), but has made no argument on appeal with regard to that conviction.
See Commonwealth v. Troy T., 54 Mass.App.Ct. 520, 524 (2002) (setting forth the elements of the offense).
As this was a bench trial, we assume that the judge correctly instructed himself on the law. Commonwealth v. Healy, 452 Mass. 510, 514 (2008).
Though the defendant did not move for a required finding of not guilty, if the evidence was legally insufficient to support the defendant's conviction, that would create a substantial risk of a miscarriage of justice. Commonwealth v. McGovern, 397 Mass. 863, 867–868 (1986). We view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). Here, the Commonwealth adduced evidence that, at the time of the incident, the defendant and the victim, though previously friends, were estranged due to a disagreement involving a debt. The victim was warned that the defendant and the victim's brother were looking for him. The defendant subsequently found the victim, drove her car across the lane of traffic directly at the victim, and stopped only within inches of him. She then proceeded to pursue him on foot. The victim testified to hearing the defendant say, “ ‘[G]ood luck trying to keep all your blood,’ or, ‘Have fun trying to keep all of your blood.’ “ The victim's statement was corroborated by his mother (who had arrived at the scene), who testified that she heard reference being made to “dead” and “blood”; she didn't know if it was toward her or toward her son.
“In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances.” Commonwealth v. Gordon, 407 Mass. 340, 349 (1990). See Commonwealth v. Robicheau, 421 Mass. 176, 178–179, 182, 183 (1995) (apprehension reasonable when the defendant exhibited erratic behavior during an escalating and emotional argument).
The defendant attempts to undercut the Commonwealth's evidence by highlighting parts of the victim's testimony in which he states that he was not concerned with the defendant's actions and purposefully antagonized the defendant by smiling. See Commonwealth v. Troy T., 54 Mass.App.Ct. at 524 (the third element of the offense speaks to such “circumstances that would justify apprehension on the part of the recipient of the threat”). The Commonwealth, however, is not required to show that the victim was in actual fear or apprehension, Commonwealth v. Maiden, 61 Mass.App.Ct. 433, 436 (2004) (rather, the “test is an objective one; whether the threat by its content in the circumstances was such as would cause ... fear that the threatened crime or injury might be inflicted”), nor must an assessment of the threat be confined to a “technical analysis of the precise words uttered.” Commonwealth v. Sholley, 432 Mass. 721, 725 (2000). Despite some of the victim's mitigating statements, the defendant's words and actions sufficed to engender a reasonable fear that the defendant had the intention and ability to kill the victim. In our analysis, we do not weigh the supporting evidence against conflicting evidence, nor do we consider the credibility of the witnesses. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
In short, given the totality of the evidence presented, we discern no error, much less a substantial risk of a miscarriage of justice.
Judgments affirmed.