Opinion
10-P-1730
11-29-2011
COMMONWEALTH, v. KENNETH CADIGAN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial in the Boston Municipal Court, a judge found the defendant guilty of disorderly conduct, in violation of G. L. c. 272, § 53. On appeal, the defendant claims that the evidence was insufficient to support his conviction because his behavior did not rise to the level of disorderly conduct, and the 'public' element of the offense was not established. We affirm.
1. Facts. We summarize the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On February 2, 2009, the defendant was riding on a Massachusetts Bay Transportation Authority (MBTA) bus transporting individuals to a shelter on Long Island, Boston. Access to Long Island is controlled by police stationed on the Moon Island Bridge. At around 6:30 P. M., Officer John Als received a call regarding an altercation on the bus, which had stopped after crossing the bridge to Long Island. When Officer Als boarded the bus, the defendant was arguing loudly with the bus driver and two other passengers, making threatening gestures, and swinging his arms. Additional officers arrived to escort the defendant off the bus. The defendant continued to swing his arms and tried to kick and punch the officers. The trial judge credited the testimony of Officer Als that the defendant was 'making gestures, swinging and talking in a loud voice and kicking and punching as they attempted to remove him from the bus.'
2. Discussion. A person commits the offense of disorderly conduct if, 'with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof' he or she engages in 'fighting or threatening, or in violent or tumultuous behavior' or creates '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), quoting from § 250.2 of the Model Penal Code (1980). As described by Office Als, the defendant's behavior -- swinging his arms, kicking, and punching as the officers attempted to remove him from the bus -- went beyond mere verbal outbursts; it reasonably could be found to be not only tumultuous, but also violent. This testimony, which was credited by the judge, was sufficient to establish that the defendant's actions created a threat to the safety of the officers and the public, and that these actions were reckless, if not intentional.
Additionally, the public element of the offense was met. 'Public' is defined as 'affecting or likely to affect persons in a place to which the public or a substantial group has access.' Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 582 (2003), quoting from Commonwealth v. A Juvenile, 368 Mass. 580, 585-586 (1975). This element may be satisfied even if the disturbance takes place in a secluded location, if members of the public are likely to be affected. See Commonwealth v. Mulvey, supra at 582-583. In this case, the judge credited the officer's testimony that the MBTA bus was open to the public and filled with twenty or more people traveling to the shelter. Even though access to Long Island is limited, the defendant's outburst took place in front of a substantial group of people reasonably likely to be affected by his behavior.
Judgment affirmed.
By the Court (Berry, Cohen, & Sikora, JJ.),