Opinion
20-P-1185
01-03-2022
COMMONWEALTH v. William J. GOYEA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions, after a District Court jury trial, of one count of operating under the influence of liquor (OUI), fourth offense, and two counts of breaking and entering in the daytime with intent to commit a misdemeanor, to wit, trespass. On appeal, the defendant contends that (1) his motion to dismiss the OUI charge for lack of probable cause was erroneously denied, (2) the evidence was insufficient to prove the intent required for the breaking and entering charges, and (3) the judge erroneously instructed the jury on the intent required to prove those charges. We affirm the OUI conviction; on the breaking and entering charges, we conclude that the evidence was sufficient but that an instructional error requires that the convictions be vacated.
The defendant had a jury-waived trial on the subsequent offense portion of the OUI charge.
The jury also returned guilty verdicts on charges of disturbing the peace and disorderly conduct; those charges were placed on file for thirty days.
Background. We first recount the facts stated in the police report attached to the application for a complaint. Officers were dispatched at approximately 5:30 P.M. for a report of an intoxicated male who had entered two residences and then entered a car across the street. The officers observed the defendant sitting in the driver's seat of the car; the car key was in the ignition and was engaged. After the officers asked the defendant to get out of the car, they observed him to be so unsteady on his feet that, for his own safety, they decided not to administer any field sobriety tests. His eyes were bloodshot and glassy, and a moderate odor of alcoholic beverage came from his mouth. The officers observed an empty vodka nip bottle on the front driver's side floor and another on the ground in front of the car. The defendant told officers that he had consumed four vodka nips; that his last drink was at 11:30 A.M. , either while driving to or while at a casino; and that he had driven back from the casino, on a highway, by himself.
The OUI evidence at trial was essentially the same. Regarding the breaking and entering charges, residents of two separate apartments each testified that they had heard someone opening their screen door and then observed the defendant, whom they did not know, inside their apartment. The defendant told the resident of the first apartment that he was looking for "Jonathan"; the resident replied that "Jonathan" did not live there, and while the resident called her mother to ask what to do, the defendant left. He told the resident of the second apartment that he was "William"; she replied that she did not know him and asked him to leave. He eventually left and entered his parked car.
Discussion. 1. Motion to dismiss. The defendant first argues that the judge erred in denying his motion to dismiss the OUI charge for lack of probable cause. See generally Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002). "[A] motion to dismiss a complaint is decided from the four corners of the complaint application, without evidentiary hearing" (quotation omitted). Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013). Probable cause requires "reasonably trustworthy information ... sufficient to warrant a prudent [person] in believing that the defendant had committed or was committing an offense." Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), quoting Commonwealth v. Stevens, 362 Mass. 24, 26 (1972) (probable cause standard for indictment). See DiBennadetto, supra.
Here, the police report recited the defendant's admission that he drank on the way to and at the casino. The defendant also told officers that his last drink was at 11:30 A.M. and that, since then, he had driven on the highway. The defendant's recent operation of the car was corroborated by the fact that the key was engaged in the car's ignition. This information, in combination with the officers’ observations of how intoxicated the defendant was approximately six hours after his last drink, permitted a reasonable inference that the defendant was at least as intoxicated at the time he drove on the highway. This was sufficient to establish probable cause.
The defendant also argues that there was no probable cause to believe that he was operating while sitting in his parked car with the key in the ignition but without the engine running or power activated, and that if we conclude that such conduct constituted operation, the OUI statute is unconstitutionally vague. As the evidence established probable cause of earlier operation, before the defendant parked his car, we need not reach either of these additional points.
2. Breaking and entering. a. Sufficiency. The defendant argues that the evidence was insufficient to prove that, at the time of the breaking and entering into each apartment, he intended to commit a trespass therein. We review to determine "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. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). We also consider inferences from the evidence in the light most favorable to the Commonwealth, see Latimore, supra, at 677-678, keeping in mind that "[a]n inference, if not forbidden by some rule of law, need only be reasonable and possible; it need not be necessary or inescapable." Commonwealth v. Beckett, 373 Mass. 329, 341 (1977). "When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense." Commonwealth v. Arias, 78 Mass. App. Ct. 429, 434 (2010).
We first address the nature of the intent required to be proven. A conviction for breaking and entering with the intent to commit a misdemeanor, see G. L. c. 266, § 16A, requires the Commonwealth to prove: (1) breaking and (2) entering (3) a building, ship, vessel or vehicle belonging to another (4) with the intent to commit a misdemeanor. See Parreira v. Commonwealth, 462 Mass. 667, 672 (2012). Specific intent to commit the predicate offense -- in this case, trespass -- is required. See Commonwealth v. Wygrzywalski, 362 Mass. 790, 792 (1973) ; Commonwealth v. Hill, 57 Mass. App. Ct. 240, 248 (2003). The intent to commit the predicate offense must be present at the time of the breaking and entering, rather than being formed once inside. See Commonwealth v. Poff, 56 Mass. App. Ct. 201, 203 (2002), and cases cited (breaking and entering with intent to commit felony). Also relevant here, "[t]he critical requirement ... in a specific intent crime [is that] the defendant must intend that the particular consequences constituting the crime follow from his act or conduct." Commonwealth v. Gunter, 427 Mass. 259, 269 n.12 (1998).
The criminal trespass statute provides in relevant part that "[w]hoever, without right enters or remains in or upon the dwelling house [or] buildings ... of another, ... after having been forbidden so to do by the person who has lawful control of said premises, whether directly or by notice posted thereon, ... shall be punished." G. L. c. 266, § 120. See Commonwealth v. Scott, 71 Mass. App. Ct. 596, 603 (2008).
One element of trespass, as the judge correctly instructed the jury, is that "without right, the [d]efendant entered or remained in a dwelling house or building of another." See note 4, supra. Because the question here concerns the defendant's intent at the time he entered the apartments, we focus on the sufficiency of the evidence that the defendant intended his entry of the apartments to be "without right."
In theory, a defendant could also break and enter with an already-formed intent that, once inside, if he were forbidden to remain there by a person with lawful control of the premises, he would nevertheless remain inside. We need not discuss that possibility here.
A rational jury, drawing on their experience and common sense, could believe that when a reasonable person opens a door to enter a home, the person will recognize, by the appearance of the entry to and interior of the home or otherwise, that the home is either their own (or one that they have a right to enter), or instead is one that they do not recognize and do not have a right to enter. Here, therefore, the jury could reasonably infer that the defendant, at the time he opened the screen door to each apartment, recognized that it was not an apartment he had a right to enter, and so, when he proceeded to enter anyway, he intended to do so without right, i.e., he intended to trespass.
That the defendant was intoxicated does not make this inference impermissible or irrational. Rather, it was for the jury to weigh the extent to which the defendant's intoxication interfered with his ability to recognize his surroundings. Additionally, "the intent to commit a felony at the time of entry may be inferred from the commission of a felony once inside," Poff, 56 Mass. App. Ct. at 203, and we see no reason why the same cannot be said of the intent to commit a misdemeanor. Therefore, the evidence of the defendant's intent was sufficient.
b. Jury instructions on intent. The defendant contends that the judge erred when instructing the jury on the intent required to prove breaking and entering with intent to commit a trespass. In particular, he argues that the judge erred by (1) instructing the jury on general intent rather than specific intent, and (2) failing to make clear that the specific intent to trespass must have been present at the time of the breaking and entering. The defendant failed to object to the instructions at trial, so we review the error, if any, for a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 685 (2002), S.C., 444 Mass. 72 (2005).
On the defendant's first argument, as discussed supra, breaking and entering with the intent to commit a trespass required, in these circumstances, proof of specific intent to enter the apartments without right. See Wygrzywalski, 362 Mass. at 792 ; Hill, 57 Mass. App. Ct. at 248. Here, however, the judge instructed only on general intent. The Commonwealth concedes that this was error. It was necessary to prove not merely that the defendant's acts of breaking and entering were intentional but that the defendant intended "the particular consequences constituting the crime," i.e., intended that his entry of the apartments be without right. See Gunter, 427 Mass. at 269 n.12.
The judge instructed: "In determining whether the [d]efendant acted intentionally, you should give the word [its] ordinary meaning of acting voluntarily and deliberately and not because of accident or negligence. It is not necessary that the [d]efendant knew he was breaking the law, but it is necessary that he intended the act to occur which constitutes the offense."
We are unpersuaded by the Commonwealth's contention that the remainder of the judge's instructions adequately conveyed this concept. The judge did say three times that the defendant must be proven to have broken and entered "with the intent ... to commit a misdemeanor," i.e., trespass. But this instruction, even taken together with the judge's proper instruction on trespass itself, see supra, did not adequately inform the jury of the need to find that the defendant intended that his entry be without right.
The defendant's second argument is that the instruction failed to convey clearly that he must have had the intent to trespass at the time he broke and entered, rather than forming that intent later. Cf. Poff, 56 Mass. App. Ct. at 203. The argument has some force. Although, as just discussed, the judge repeatedly instructed that the defendant must be proven to have broken and entered "with the intent" to commit a misdemeanor, we question whether the single word "with" is sufficient to inform the jury clearly that the intent to trespass must have been formed by the time of the breaking and entering. Compare Poff, 56 Mass. App. Ct. at 203-204 (stressing importance of clear instruction on time by which intent must be formed); Commonwealth v. Randall, 50 Mass. App. Ct. 26, 29 (2000) (same). By way of contrast, the current model instruction on breaking and entering with the intent to commit a felony states in pertinent part: "The Commonwealth must prove that the defendant intended to commit a felony at the time he (she) broke and entered the (building)." Instruction 8.100, Criminal Model Jury Instructions for Use in the District Court (2009). That model instruction is specifically adaptable for use in cases of breaking and entering with the intent to commit a misdemeanor. See id. note 4 ("Related offenses"). It would have been preferable, at least, to instruct in those clearer terms. Ultimately, however, having already concluded that the instruction was erroneous with respect to the type of intent required, we need not and do not decide whether it was also erroneous in failing to explicitly state when that intent must have been formed.
c. Substantial risk of a miscarriage of justice. We must now evaluate whether the erroneous instruction on intent created a substantial risk of a miscarriage of justice. See Azar, 435 Mass. at 685. That question turns on whether we have "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). "In making that determination, we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error, and whether it can be inferred from the record that counsel's failure to object was not simply a reasonable tactical decision" (quotations and citation omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
While the evidence of the defendant's intent to trespass at the time of the breaking and entering was sufficient, see supra, it was far from overwhelming. The proof depended heavily on the inference that the defendant recognized his surroundings. But there was little if any specific evidence that the defendant, in his intoxicated state, in fact did so. The defendant entered through open screen doors, apparently with no difficulty, and there was no evidence that the appearance of the entrances or interiors of the apartments was somehow unusual or especially likely to catch the defendant's attention and make him realize that he was entering apartments where he had no right to be.
As for the nature of the error, the Poff court stated, in the context of a similarly erroneous intent instruction, that "[w]hen an error pertains to the definition given to the jury of the crime charged, the possibility of a substantial risk of a miscarriage of justice is inherent" (quotations omitted). Poff, 56 Mass. App. Ct. at 204. Moreover, the erroneous failure to instruct on specific intent here was closely connected to the absence of an explicit instruction on when that intent must have been formed. That aspect of the instructions, even if not error, adds to our concern about the verdicts.
Finally, there is no suggestion here that counsel's failure to object was a reasonable tactical decision. We thus are left with "a serious doubt" about the verdicts on the breaking and entering charges. LeFave, 430 Mass. at 174. The erroneous instruction created a substantial risk of a miscarriage of justice.
Conclusion. The judgment of conviction of OUI, fourth offense, is affirmed. The judgments of conviction of breaking and entering with intent to commit a trespass are vacated, and those verdicts are set aside.
So ordered.
affirmed in part; vacated in part