Opinion
No. 12–P–228.
2013-02-13
COMMONWEALTH v. Robert C. DRUHAN.
By the Court (COHEN, GREEN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Viewing the evidence in the light most favorable to the prosecution, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), a rational trier of fact could have found beyond a reasonable doubt, based on the videotape and the testimony of Robert Ward, Judith McGibbon, and Brockton police Officer Robert Saquet, that the defendant wilfully and with malicious intent destroyed the vinyl siding on Ward's and McGibbon's house by throwing rocks. The defendant had the motive (wood stove)and the opportunity (lived across the street), and demonstrated consciousness of guilt (by making the statement, “How do you like them rocks?” to Ward and McGibbon).
The evidence supported the conclusion that the defendant had a motive to destroy Ward's and McGibbon's property, because he was not pleased with them for installing and using a wood stove. Ward had no problems with the defendant until after he installed the wood stove. Following the installation, Ward and McGibbon noticed an accumulation of rocks in their yard (when there was none in their neighbors' yards), holes in their vinyl siding, and broken car windshields. In addition, the defendant would call them “f-ing retards” and tell them he was going to “make them pay” and that he would “get them.” The rock-throwing coincided with when Ward and McGibbon used the wood stove to heat their home. On one occasion when Ward and McGibbon telephoned the police, the defendant waved goodbye to the police officer as he was leaving and said to Ward and McGibbon, “How do you like them rocks?” The trial judge, as fact finder, could view the defendant's comment as essentially an admission, demonstrating his involvement and intent. The element of “intent ... may be proved by inference from all the facts and circumstances developed at trial.” Commonwealth v. Sabetti, 411 Mass. 770, 779–780 (1992), quoting from Commonwealth v. Costa, 407 Mass. 216, 225 (1990). A videotape from the night of January 26, 2010, was entered in evidence depicting something flying across the screen and what looks like a rock bouncing off the Ward/McGibbon house and then onto the driveway between two cars. Later, Ward and McGibbon found a rock between their two cars and saw that their vinyl siding was cracked. They telephoned the police and Officer Saquet responded. Ward and McGibbon showed Officer Saquet the videotape. Officer Saquet estimated the point of origin of the rock shown on the videotape as right across the street, from either the defendant's driveway or the front of his house. Although there was no testimony from any witness who observed the defendant throwing rocks, there was circumstantial evidence to prove that he did. Circumstantial evidence is competent to establish guilt beyond a reasonable doubt. Commonwealth v. Nadworny, 396 Mass. 342, 354 (1985).
Ward also believed the rock in the videotape originated from the corner of the defendant's property.
In sum, viewed in the light most favorable to the Commonwealth, the evidence was sufficient to support the defendant's conviction.
There is no merit to the additional arguments contained in the defendant's brief (which also are contained in the supplemental brief filed by the defendant himself, pro se), for substantially the reasons set forth in the Commonwealth's brief at pages eighteen to twenty-nine.
Judgment affirmed.