Opinion
No. 11–P–1353.
2012-10-24
COMMONWEALTH v. Ricardo CLERMONT.
By the Court (COHEN, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A finding by a preponderance of the evidence that the defendant was guilty of assault and battery with a dangerous weapon in violation of G.L. c. 265, § 15A, a stabbing, formed a part of the basis for the judge's revocation of the defendant's probation. In this appeal, the defendant argues that the evidence at the probation revocation hearing was insufficient to support the judge's finding of guilt with respect to the element of knowing participation in the crime. See Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009) (conviction where more than one person may have participated in a crime requires that a defendant “knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense”).
The defendant recognizes that we must take the evidence from the record in the light most favorable to the Commonwealth and that in a probation revocation hearing, a preponderance of the evidence standard, rather than a beyond a reasonable doubt standard, applies. See Commonwealth v. Hill, 52 Mass.App.Ct. 147, 154 (2001). Even assuming the evidence in the record before the judge would not have been sufficient to support a jury finding of guilt beyond a reasonable doubt of assault and battery with a dangerous weapon in violation of G.L. c. 265, § 15A, a question on which we need not and do not express any opinion, it was certainly sufficient to support the judge's finding by a preponderance of the evidence. There was evidence that the defendant was one of a group of three gang members who joined a circle surrounding the victim, a member of a rival gang, in a confrontation in which one of the defendant's fellow gang members stabbed the victim. There was evidence that immediately after the stabbing the defendant or one of the defendant's other companions said “you got him,” supporting an inference that this was a planned assault. Further, there is evidence that, even if the defendant was not one of the two members of his group who chased the victim and his sister and yelled and punched and kicked his car, which would be probative of their knowing participation in the crime, the defendant then fled with the stabber, which is evidence of consciousness of guilt and is also probative of knowing participation. See Commonwealth v. Fuentes, 45 Mass.App.Ct. 934, 936 (1998). This evidence suffices to support a finding by a preponderance of the evidence that the defendant knowingly participated in the assault and battery.
Order revoking probation affirmed.