Opinion
No. 15–P–793.
10-04-2016
COMMONWEALTH v. Aaron M. FOX.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial in Superior Court, the defendant was convicted of (1) unlawful possession of a prohibited weapon, in violation of G.L. c. 269, § 10(b ) ; (2) home invasion, in violation of G.L. c. 265, § 18C ; (3) stalking in violation of G.L. c. 265, § 43(a ) ; (4) intimidation of a witness, in violation of G.L. c. 268, § 13B ; (5) repeatedly telephoning or contacting a person electronically for the purpose of harassing or annoying that person, in violation of G.L. c. 269, § 14A ; and (6) assault and battery, in violation of G.L. c. 265, § 13A(a ). On appeal, with the exception of the conviction of assault and battery, the defendant argues that each conviction is unsupported by the evidence. We affirm.
After the judge had entered her findings of guilty, the defendant pleaded guilty to the indictment charging a second or subsequent offense of carrying a dangerous weapon, in violation of G .L. c. 269, § 10(d ).
Factual background. We set forth the relevant facts presented at the trial. The Commonwealth's primary witness was Devone Fox (Devone), the defendant's former wife. She and the defendant were married in July of 2003 and had two children together who resided with Devone in Athol. Devone and the defendant were divorced in August of 2009. In the spring of 2012 they reconciled. After the reconciliation, the defendant slept at the house quite frequently and kept clothing and other personal belongings there. In late November or early December of 2012, Devone broke off the relationship. Soon thereafter, Devone obtained the defendant's key to her home and bedroom from him, and he was not allowed to enter the home, although he did come by to pick the children up for some activities.
The convictions arise out of events that took place during the evening of December 22, 2012, and the early morning hours of December 23. On the evening of December 22, Devone went to the apartment of Alan Walsh and parked her minivan in front of Walsh's apartment. While she was visiting with Walsh, Devone received “multiple” text messages and “multiple” telephone calls from the defendant. Although she did not look out the window, she could hear the defendant driving back and forth in front of Walsh's apartment. The defendant was honking his horn and revving his engine. The defendant left threats on the voicemails including that Devone “had five minutes to leave the residence, [and] that if [she] didn't leave, that bad things were going to happen.” He called her a “fucking slut” and a whore. Devone decided to call the police; the police did not come after the first phone call.
Because she had continued to receive text messages, Devone made a second call to the police. After that call, Officer Peter Buck, of the Athol police department, came to Walsh's apartment. He followed Devone home. She locked all the doors before going to bed. In addition to locking the exterior doors, Devone locked the door to her bedroom. She went to bed, and the next thing she remembers is hearing a crash and seeing the defendant standing over her. He had an unopened knife in his hand and said that he was going to kill himself. The sound she had heard was consistent with the defendant kicking in her bedroom door. Devone grabbed her cellular telephone (cell phone) and said she was going to call the police. The defendant dropped the knife on the bed; Devone pushed it under the covers and then the defendant grabbed Devone by the shoulders and shook her. Devone's dog ran into the bedroom and tried to attack the defendant; the defendant then let go of Devone. The defendant took Devone's cell phone and threw it in the hall, whereupon the phone “fell apart.” Devone pounded on the ceiling and yelled to another inhabitant of the house to call the police. At some point after the call to the police was made, the defendant left the house.
When the police arrived at the house, Devone gave the knife to Sergeant Casella, who had come to her house in response to the call, and was met there by Officer Buck. Devone testified that the knife had not been inside her house prior to the defendant's appearance with it. She also stated that there was substantial damage to her bedroom door where the defendant had broken it open.
The defendant testified in his own behalf. Much of his testimony involved his contention that he still lived at Devone's house on December 22 and 23. He testified about the clothing and personal effects he kept there. He also testified that on the evening of December 22 he was texting Devone repeatedly and calling her because he was concerned that she was involved with another man. He stated that he entered the house with a key he had procured from Devone's and his mutual friend, Jon Brooks, who had earlier been given a key so that he could attend to various tasks while Devone and the defendant were on vacation. The defendant stated that he called 911 when Devone said that she was going to call the police, but hung up when he realized that the call had been made by someone upstairs. The defendant also testified that Brooks had given him the knife and that he took the knife from the top of the refrigerator after he entered Devone's house. He testified that the knife had both a seat-belt cutter and a window breaker on it. He also stated that you have to push the blade out of the handle in order to open the knife.
Jon Brooks testified on behalf of the defendant at trial. He testified concerning the defendant's frequent presence at Devone's house.
Additional evidence will be discussed in conjunction with the consideration of the issues presented.
Discussion. 1. Violation of G.L. c. 269, § 10(b). The indictment under this statute charges that the defendant was carrying “a KNIFE, having an automatic spring release device by which the blade is released from the handle, having a blade of over one and one-half inches, in violation of General Laws Chapter 269, Section 10(b ).” See G.L. c. 269, § 10(b ), as appearing in St.1974, c. 649, § 2. The Commonwealth proceeded on the sole theory that the knife was dangerous per se, as described in the indictment.
There is no question that the blade of the knife meets the requirement of having a blade of over one and one-half inches.
Whether the knife met the definition of one that was dangerous per se under the statute was a question of fact for the finder of fact. In assessing whether the Commonwealth met its burden of proof, we “must of course consider ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ “ Commonwealth v. Higgins, 85 Mass.App.Ct. 534, 535 (2014), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
On appeal the defendant claims that the Commonwealth failed to meet its burden of proof that the knife had “an automatic spring release device by which the blade is released from the handle.” The defendant argues that there was no proof that the blade released from the handle or that there was an automatic spring release device. The defendant contends that there was a two-step process for opening the knife: It was first necessary to press on the blade and then, by pressing a nub, the knife would open. Additionally, the defendant argues that the judge erred in denying his motion in limine requesting to present evidence that the knife was available for sale at stores because the judge determined that such evidence was irrelevant.
The evidence concerning the way in which the knife worked was presented by Officer Buck. He did not testify as an expert witness, but as a witness who was, in the judge's words, “simply demonstrating how the item works.” He testified that “[b]y activating a switch on the back of the knife with your finger, you would place downward pressure, the knife automatics [sic] opens up.” He further testified that the knife opens up with the blade in a “locked position.” He also stated that “[t]here's no finger groove or any mechanism to manually open this thing.”
The defendant objected to the officer's use of the word “automatic.” In denying the defendant's motion for a required finding of not guilty, which was made in part on the basis of what the defendant contended was an unsubstantiated use of the term “automatic” by Buck, the judge observed that “automatic” has a “common and accepted use” that means, in this context, that “something work[s] or happen[s] without being directly controlled by a person.” The judge appropriately relied on the dictionary in arriving at that definition of the word. There was no error in permitting the officer to use the word “automatic” in describing the way in which the knife worked. The knife was introduced in evidence as an exhibit.
As we have noted, the judge also refused to permit the defendant to present testimony that the particular type of knife could be purchased at a store. The defendant made a motion in limine to present such evidence and renewed the motion during trial. In denying the motion the judge said, “This evidence about whether or not these types of knives can be purchased elsewhere is in my view, has absolutely no relevance.” The statute does not specify that the availability of a dangerous per se weapon in a store is a defense to carrying such a weapon. The judge did not err in denying the motion in limine.
Neither the defendant nor Jon Brooks, the friend from whom he obtained the knife, testified concerning where the knife had been purchased.
The defendant argues that the Commonwealth was required to prove that the defendant knew that the knife was illegal. The statute imposes no such requirement.
After all the evidence had been presented, the judge found that the knife in question “meets the specific description and definition of a knife as alleged in ... the indictment.” She had observed Officer Buck's demonstration of how the knife worked, and the knife had been introduced in evidence. There was sufficient evidence for her to make this finding. Contrast Higgins, 85 Mass.App.Ct. at 536–538 (insufficient evidence whether knife in question could be opened easily by thumb stud into locked position as required for finding of guilt under the indictment).
2. Home invasion. In order to convict the defendant of home invasion, the Commonwealth was required to prove beyond a reasonable doubt that the defendant knowingly entered the dwelling place of another person when he knew that other persons were present, while armed with a dangerous weapon, and that he used force upon Devone while in that dwelling. See G.L. c. 265, § 18C. The defendant argues that he did not “knowingly” enter the dwelling place of “another,” that he did not enter with a dangerous weapon, and that he did not use force. There was sufficient evidence for the judge to conclude, as she did, that these elements of the offense were proven beyond a reasonable doubt.
As this court noted in Commonwealth v. Marshall, 65 Mass.App.Ct. 710, 714 n. 5 (2006), “the facts of this case depart from the paradigmatic home invasion case. While G.L. c. 265, § 18C, has been employed infrequently in cases where the defendant and the victim have been in some form of ongoing relationship and the defendant was a frequent visitor in the victim's home, we do not ‘second-guess the charging decisions of the executive branch.’ Commonwealth v. Simmarano, [50 Mass.App.Ct. 312,] 316–317 [2000].” Here there was sufficient evidence to support the judge's findings that “Mr. Fox unlawfully entered the home of another through his unauthorized use of a key.” The judge did not credit the defendant's testimony that he continued to live at the house on December 22 and 23. She also specifically found that he entered the house with the dangerous weapon and did not credit the defendant's testimony that he took the knife from the top of the refrigerator. She also found that he used force by “grabbing [Devone's] shoulders and shaking her.” As in Marshall, supra at 716–717, the issue whether the victim's home was the dwelling place of another or whether the defendant was authorized to be there was one of fact for the trier of fact. The judge resolved these factual issues, and her findings are supported by the evidence.
3. Stalking. To find a defendant guilty of stalking, the Commonwealth must prove that he “(1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury.” G.L. c. 265, § 43(a), as appearing in St.1996, c. 298, § 11. Here the defendant argues that the conduct that formed the basis of the conviction was continuous, rather than more than two separate incidents, as required by the statute and case law. See Commonwealth v. Julien, 59 Mass.App.Ct. 679, 684 (2003).
The judge found that “the three different courses of conduct” had been proven beyond a reasonable doubt: (1) making the telephone calls, (2) driving by Walsh's apartment repeatedly while “honking the horn and revving [the defendant's] engine,” and (3) breaking and entering Devone's house some hours later. These three acts occurred over a ten-hour period. The judge found that the element of a threat was established by the defendant's statement “to the effect of get out of that house within five minutes or something bad is going to happen.” The judge further found that the defendant's actions were calculated to place Devone in fear of harm and that she did fear him. The judge's findings were supported by the evidence.
4. Intimidation of a witness. The judge made the following findings concerning the charge of intimidating a witness. “I'm convinced beyond a reasonable doubt that Mr. Fox deliberately and willfully caused property damage to or intimidated Devone Fox by grabbing her cellular phone and throwing it after she said that she would be calling, using it to call the police. I'm also satisfied and convinced beyond a reasonable doubt that Ms. Fox was at that time a witness or potential witness at any stage of a criminal investigation, in other words, she was about to call the police to report this criminal offense. And I'm also convinced beyond a reasonable doubt that Mr. Fox engaged in this conduct with the specific intent of impeding, obstructing or interfering with that criminal investigation. So I find him guilty of intimidation of a witness.”
The defendant first contends that there was insufficient evidence of property damage to Devone's cell phone. The evidence was to the effect that the cell phone fell apart when the defendant threw it. The judge found that was sufficient property damage to satisfy the requirements of the statute, and we agree.
The defendant next contends that it was necessary to prove that the defendant was aware of an ongoing criminal proceeding. In Commonwealth v. Belle Isle, 44 Mass.App.Ct. 226, 228 (1998), this court reiterated that the statute has two distinct branches, one that applies to witnesses in ongoing proceedings and the other to individuals furnishing information to an investigating authority concerning a crime. In Belle Isle the defendant was assaulting his brother-in-law at his house. The brother-in-law's wife attempted to stop the assault, and when she could not, she said that she would call the police. The defendant detached the phone cord from the wall. He then recommenced his assault on his brother-in-law. Id. at 227. In considering the legislative history, this court concluded that the statute “include[d] furnishing information to a police officer at any stage of a criminal investigation.” Id. at 229. Here, Devone had been screaming for her housemate to call the police while the defendant assaulted her. After Devone said that she was going to call the police, the defendant threw her cell phone. These actions are sufficient, as the judge found, to satisfy the elements of the statute.
The defendant also contends that there was insufficient evidence to support the specific intent requirement of the statute. The defendant's throwing the phone immediately after Devone stated that she was going to call the police was sufficient to meet the requirement of specific intent to impede or obstruct an investigation. The judge's finding of specific intent is sufficiently supported by the evidence.
5. Harassing or annoying telephone calls. The defendant challenges his conviction on the indictment charging him with making either telephone calls to Devone or contacting her by electronic communication for the sole purpose of harassing or annoying her. He argues that, in addition to arguably being made to annoy, the communications were also generated for the defendant to express his suicidal thoughts, his desire to continue the relationship, and to determine whether the relationship was over.
The defendant cites the case of Commonwealth v. Strahan, 30 Mass.App.Ct. 947 (1991), in support of his argument. In that case, the defendant had been involved for a long time with the woman whom he called repeatedly. After he had, without invitation, visited the woman and entered her apartment, her friend kicked him out. The next day the defendant called the woman “approximately eleven times in seven minutes. She testified that the defendant stated in these calls that he merely wished to speak with her.” Id. at 948. In the past, when the relationship had faltered, the defendant had made frequent phone calls to the woman in an attempt to reestablish communication. This court determined that the evidence was insufficient to support the Commonwealth's burden of proof that the calls were made for the “sole” purpose of harassing the woman. Id. at 949. Here, the nature of the calls and text messages was far different. The calls were laced with profanities and accusations. The defendant persisted with the calls and text messages in the absence of any response from Devone. Unlike Strahan, there was no evidence that frequent calls or text messages had been made in the past in attempts to rekindle the relationship. The judge's finding that they were made for the sole purpose of harassing Devone was supported by the evidence. See Commonwealth v. Roberts, 442 Mass. 1034 (2004).
6. Arguments presented in accordance with Moffett. The defendant has raised two arguments from which his counsel has found it necessary to disassociate herself in accordance with Commonwealth v. Moffett, 383 Mass. 201 (1981). The first involves the defendant's claim that the prohibition against the type of knife at issue here, as described in G.L. c. 269, § 10(b ), cannot be enforced because such enforcement violates the commerce clause of the United States Constitution as the same knife is legal under Federal law. The Commonwealth first argues that the same type of knife is illegal under Federal law. Alternatively, the Commonwealth also argues that even if the knife is legal under Federal law, any additional prohibition the Commonwealth places on such knives is within its regulatory powers as it places, at most, an incidental burden on interstate commerce. See Maine v. Taylor, 477 U.S. 131, 138 (1986). Statutes that place an incidental burden on interstate commerce violate the commerce clause only when “the burdens they impose on interstate trade are ‘clearly excessive in relation to the putative local benefits.’ “ Ibid., quoting from Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). Any purported burden here would only be incidental and would promote public safety, a “particularly appropriate” State concern. Opinion of the Justices, 368 Mass. 824, 827 (1975). There is no violation of the commerce clause here.
Finally, the defendant argues that the Commonwealth demonstrated bad faith in bringing charges against him for which it had insufficient evidence. The argument has no merit.