Opinion
19-P-690
10-19-2020
COMMONWEALTH v. Josue COMPRES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial in the District Court, the defendant, Josue Compres, was convicted of criminal trespass, resisting arrest, and vandalism. On appeal, he asserts that the evidence was insufficient to support any of the convictions. We affirm the judgments on the charges of trespassing and resisting arrest. Because we find the evidence insufficient to sustain the conviction on the charge of vandalism, we reverse the judgment on that charge.
Discussion. Although the defendant did not move for required findings of not guilty at the conclusion of the trial, a conviction based on insufficient evidence creates a substantial risk of a miscarriage of justice. See Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986). We review the evidence in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318–319 (1979).
It is the role of the trier of fact, in this case the trial judge, to consider the weight and credibility of the evidence. See Commonwealth v. Thompson, 362 Mass. 382, 385 (1972) ("the weight and credibility due the evidence, especially when it is oral testimony, are to be decided by the trial judge who hears the witnesses"). If "conflicting inferences are possible, it is for the [fact finder] to determine where the truth lies." Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
1. Criminal trespass. Under G. L. c. 266, § 120, "[w]hoever, without right enters or remains in or upon the ... buildings ... or improved or enclosed land ... of another ... after having been forbidden so to do by the person who has lawful control of said premises ... shall be punished." A person violates the statute "by entering the premises after having been forbidden to do so" or "by remaining on the premises after having been asked to leave." Commonwealth v. Strahan, 30 Mass. App. Ct. 947, 948 (1991), citing Commonwealth v. Richardson, 313 Mass. 632, 637 (1943). "[A]dequate notice" that one is forbidden to remain on the premises must be given. Commonwealth v. Alvarez, 480 Mass. 1017, 1019 (2018).
The defendant argues that the Commonwealth failed to prove beyond a reasonable doubt that he was guilty of trespass because he was leaving the police station when he was arrested, and no arrest was necessary to prevent further trespass. The evidence, when viewed in the light most favorable to the Commonwealth, does not support his contention. Lieutenant John Bossolt testified that once the defendant was told that his brother, a minor who was in custody at the police station, could be released only to a parent or guardian and not to the defendant, he became "belligerent." Officers repeatedly asked him to leave the station, but he refused. The defendant was warned that he would be subject to arrest if he remained on the premises. Although given adequate notice that he was not permitted to remain and an opportunity to leave, the defendant refused to leave until the officers began to escort him out. Given the defendant's persistent refusal to leave the station after being told many times to do so, the evidence was sufficient to support the conviction for trespassing.
2. Resisting arrest. A person commits the crime of resisting arrest by knowingly preventing an officer from effecting an arrest through the use or threatened use of physical force, or by any other means "which creates a substantial risk of causing bodily injury to such police officer or another." G. L. c. 268, § 32B. "An arrest occurs where there is (1) ‘an actual or constructive seizure or detention of the person, [2] performed with the intention to effect an arrest and [3] so understood by the person detained.’ " Commonwealth v. Grandison, 433 Mass. 135, 145 (2001), quoting Commonwealth v. Cook, 419 Mass. 192, 198 (1994).
To determine whether the defendant understood he was being arrested, the appropriate inquiry is an objective one: "whether a reasonable person in the defendant's circumstances would have so understood." Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008). The police do not need to use the word "arrest" to put the defendant on notice, as "[o]ther phrases and situations commonly associated with arrest can create the required level of understanding." Commonwealth v. Soun, 82 Mass. App. Ct. 32, 36 (2012), citing Grant, supra at 210.
Pointing to internal inconsistencies in Bossolt's testimony, differences between his testimony and that of Officer Tim Foley, and the video recording of the events in the lobby and vestibule, the defendant contends that the Commonwealth failed to prove that he understood he was under arrest. Again, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found that as the officers began to escort the defendant out of the police station, he began to struggle and "spin and pull" away. At this point, by their words and actions, the officers told the defendant he was under arrest. Nonetheless, as the officers attempted to handcuff the defendant, and even after the handcuffs were applied, the defendant continued to struggle. Although the video has no audio, and therefore sheds no light on when the defendant was verbally advised that he was under arrest, it does shows a struggle between the officers and the defendant before and after they placed him in handcuffs. The evidence was sufficient to permit the judge to find that the defendant continued to resist after a reasonable person in his place would have understood that he was under arrest.
The defendant also complains of the absence of testimony from one of the officers who advised him he was under arrest, which, he asserts, would have been "extremely probative." When reviewing for sufficiency, we consider the evidence presented to the trier of fact -- not the evidence that could have been presented but was not.
3. Vandalism. Under G. L. c. 266, § 126A, "[w]however intentionally, willfully and maliciously or wantonly, paints, marks, scratches, etches or otherwise marks, injures, mars, defaces or destroys the real or personal property of another including but not limited to a wall, fence, building, sign, rock, monument, gravestone or tablet" is guilty of a felony. The evidence, viewed in the light most favorable to the Commonwealth, showed that the defendant's struggles during the arrest tore a pocket of one of the officers' uniforms. Even assuming that this amounted to "injuring" or "marring" personal property within the meaning of the statute, the Commonwealth failed to prove that the defendant's conduct was "wanton."
The statute "contains two disjunctive elements: wilful and malicious conduct, or, wanton conduct." Commonwealth v. McDowell, 62 Mass. App. Ct. 15, 22 (2004). The Commonwealth proceeded under a theory of wanton conduct. Wanton defacement of property under G. L. c. 266, § 126A, is a general intent crime. See id at 24. To prove wanton behavior, the Commonwealth must show that "the actor's conduct was indifferent to, or in disregard of, probable consequences." Id. at 22, quoting Commonwealth v. Armand, 411 Mass. 167, 171 (1991). "However, conduct cannot be characterized as wanton or reckless for purposes of criminal liability simply by reason of an indifference to a probable but slight injury." Commonwealth v. Gordon, 82 Mass. App. Ct. 227, 231 (2012), quoting Commonwealth v. Ruddock, 25 Mass. App. Ct. 508, 513 (1988). Instead, "[c]riminal responsibility is imposed on the basis of the intentional doing of an act with an awareness of the probability that the act will result in substantial damage." Ruddock, supra at 513. See Commonwealth v. Schuchardt, 408 Mass. 347, 352 (1990) ("Conduct may be wilful and malicious although its harmful consequences are neither substantial nor highly likely," but for wanton conduct, there must be a finding "that the likely effect of the defendant's conduct was substantial harm"). See also Criminal Model Jury Instructions for Use in the District Court, Instruction 8.250 (2019) ("A person acts wantonly by acting recklessly or with indifference to the fact that [his] [her] conduct would probably cause substantial injury to, or destruction of, another's property").
Unlike getting into a car with a blood alcohol level of .25 and driving rapidly backward and forward, heedless of the consequences, see McDowell, 62 Mass. App. Ct. at 16, 24, the defendant's ill-advised decision to struggle with the four police officers who were trying to arrest him within the confines of the police station was not likely to cause substantial property damage. The defendant's mere indifference to the possibility of tearing an officer's uniform while resisting arrest does not amount to wanton conduct within the meaning of G. L. c. 266, § 126A.
By contrast, the crime of resisting arrest occurs when the defendant knowingly engages in conduct that creates a "substantial risk of causing bodily injury" to the arresting officer. Grandison, 433 Mass. at 145.
Our cases recognize that in other factual scenarios, a defendant who affirmatively engages in fighting, flailing, or making physical contact with others, in circumstances or locations where such conduct is likely to result in substantial injury to another's property, may be found criminally liable for wanton conduct. Here, however, having reviewed the testimony and watched the video of the incident, applying the Latimore standard, we are constrained to conclude that the evidence was insufficient to find, beyond a reasonable doubt, that the defendant's conduct rose to such a level of criminal risk or responsibility.
See Latimore, 378 Mass. at 677.
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Conclusion. The judgment on count one of the complaint charging vandalism is reversed, the finding is set aside, and judgment shall enter for the defendant. The judgments on counts two and three of the complaint charging trespassing and resisting arrest are affirmed.
So ordered.
Affirmed in part; reversed in part.