Opinion
14-P-1316
10-07-2015
COMMONWEALTH v. JOSE CARDONNA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant, Jose Cardonna, was convicted of disorderly conduct and resisting arrest. On appeal, he claims that the evidence presented was insufficient to support these two convictions. We affirm.
The defendant was also convicted of threatening to commit a crime, as to which he makes no argument on appeal. He was acquitted of assault and battery on a police officer.
1. Standard of review. When reviewing a challenge to the sufficiency of the evidence, we "consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Cordle, 412 Mass. 172, 175 (1992).
2. Resisting arrest. The defendant claims that the Commonwealth failed to prove that he was aware that he was being arrested. Such knowledge is an essential element of the crime of resisting arrest. Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208-209 (2008). "The standard for determining whether a defendant understood that he was being arrested is objective -- whether a reasonable person in the defendant's circumstances would have so understood." Id. at 208. See Commonwealth v. Quintos Q., 457 Mass. 107, 109 (2010).
The jury could have found the following facts. Uniformed Lawrence police Officer Thomas Murphy encountered the defendant and his brother when Murphy was covering a call, unrelated to the brothers, at a multi-family residence. When Murphy told the two to go back into their adjacent apartment, the defendant's brother lunged at Murphy. The defendant then grabbed Murphy by the arm and an altercation ensued in the doorway where Murphy was standing. Another officer arrived and pulled the brother and Murphy outside. The defendant was left behind inside. Once outside, the defendant's brother was placed under arrest.
As the police were dealing with his brother, the defendant came outside and followed them down the driveway, all the while loudly and belligerently yelling expletives at them. The police warned the defendant four or five times to leave the area and return to his apartment, or he would be arrested. When he did not follow the officers' instructions, they decided to place him under arrest. Instead of submitting, the defendant pulled one of his arms to the center of his chest, making it difficult for the officers to place his hands behind his back. While trying to handcuff the defendant, the officers told him "to stop resisting, put your arm -- your hand behind your back." The defendant struggled for fifteen to twenty seconds, but was eventually handcuffed and placed in the police cruiser with his brother.
Contrary to the defendant's argument, the testimony, in the light most favorable to the Commonwealth, supports the inference that the arrest consequence was communicated to the defendant.
Under the circumstances, the jury reasonably could have inferred that the defendant knew he was being placed under arrest. He instigated a fight with a police officer, was loud and belligerent, failed to leave when given both ample opportunity and warning that he would be arrested, and finally physically opposed the officers trying to subdue and handcuff him, even as they told him to stop resisting. See Commonwealth v. Soun, 82 Mass. App. Ct. 32, 36-37 (2012); Commonwealth v. Portee, 82 Mass. App. Ct. 829, 833 (2012).
3. Disorderly conduct. The defendant challenges only the evidence that his actions affected the public, an essential element of the crime of disorderly conduct. See Commonwealth v. Chou, 433 Mass. 229, 232 (2001); Commonwealth v. LePore, 40 Mass. App. Ct. 543, 545-546 (1996). "'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) (citation omitted). Here, the arrest occurred at 10:00 P.M., in the defendant's driveway, in a residential neighborhood in Lawrence. As noted, the defendant was loud and belligerent. One of the responding officers testified that a woman from across the street came out, and that a few others also "came out of the woodwork." The public element is met under these circumstances. Contrast id. at 583-584.
Judgments affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 7, 2015.