Opinion
18-P-1276
10-10-2019
COMMONWEALTH v. Brandon D. JOHNSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of threatening to commit a crime in violation of G. L. c. 275, § 2. On appeal the defendant argues that there was insufficient evidence to support his conviction. We affirm.
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 of the crime[ ] beyond a reasonable doubt." Commonwealth v. Ayala, 481 Mass. 46, 51 (2018). To prove the offense of threatening to commit a crime, the Commonwealth must demonstrate "an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat." Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), quoting Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). "[A] threat must be tested objectively"; that is, the evidence must be sufficient to show that the threat was made in circumstances that would reasonably justify apprehension in an ordinary person. Commonwealth v. Milo M., 433 Mass. 149, 151 (2001).
Here, the defendant argues that the evidence was insufficient to support a finding of justifiable apprehension on the part of the victim. We disagree. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. On June 4, 2016, the defendant's mother took him to the emergency department of Boston Medical Center (hospital) to be treated for a facial wound. At approximately 10 P.M. , the victim, a public safety officer at the hospital, received a complaint of a disorderly patient and responded to the emergency department. There, she observed a man, later identified as the defendant, yelling at the nurses. She and other officers tried to calm the defendant down, but he continued to yell and refused to return to the treatment room. At one point the defendant stepped toward a doctor, causing the victim, unsure of what might happen, to step in front of the doctor.
The defendant does not contend that the evidence was insufficient to establish the remaining elements of the offense.
The victim escorted the defendant to the lobby, where he continued yelling, demanded to know the names of medical personnel, and assumed a fighting stance. Several officers then escorted the defendant outside. As they turned to reenter the building, the defendant advanced toward them. He then used his hand to mimic a gun, pointed it at the victim, who was closest to him, and stated, "I'll kill you, bitch." Turning his focus to the other officers, the defendant mimicked shooting a gun at each of them while saying, "And you, and you and you." He also made "popping noises" at the officers.
The victim initially testified that the defendant stated, "I'll come back and kill you, bitch," but later clarified that his exact words were, "I'll kill you, bitch."
Based on these facts, a rational jury could have found that the victim had a reasonable fear that the defendant had the intention and the ability to carry out his threat. In making this determination, "the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances." Sholley, 432 Mass. at 725. See Milo M., 433 Mass. at 154. The victim testified that, in the past, "multiple people" had returned to the hospital "to do harm ... to medical staff" and that "there is a very good possibility" that "[a]nybody who says [a] threat ... [will] come back." See id. at 157-158 (evidence sufficient to support finding that teacher had reasonable fear that juvenile could carry out threat "in light of the ‘climate of apprehension’ concerning school violence in which th[e] incident occurred"). Moreover, the defendant had an angry demeanor, was belligerent to the point where multiple officers had to escort him from the building, and made popping noises and physical gestures mimicking shooting a gun while making the threat. This evidence further supports a finding that the victim's fear was reasonable. See Sholley, supra at 726 (reasonableness of victim's fear supported by evidence that defendant "was ‘yelling’ and ‘screaming’ in an angry tone of voice," "had just been crying out a prediction of ‘war’ and ‘bloodshed,’ " and "stood only inches from [the victim] pointing his finger in her face"); Commonwealth v. Elliffe, 47 Mass. App. Ct. 580, 583 (1999) ("evidence that the defendant ... was ‘very very angry,’ ‘standing two feet from [the victim]’ and physically assaulting and battering her, could permit a jury to draw the reasonable inference that ... additional violence, either presently or in the future, would follow").
In arguing otherwise, the defendant points to evidence that none of the officers immediately arrested or reported him, and that following the incident the victim allowed him to return to the hospital to make a telephone call. But in assessing sufficiency, we must of course take the evidence in the light most favorable to the Commonwealth. Viewed in that light, the evidence was sufficient, for the reasons stated above, to support the jury's verdict. See Commonwealth v. Ditsch, 19 Mass. App. Ct. 1005, 1005 (1985) ("absence of immediate ability, physically and personally, to do bodily harm [does not] preclude[ ] a conviction for threats").
We note also that a Boston police officer accompanied the defendant when he returned to the hospital to make the telephone call, and that the victim only allowed the defendant to use the telephone provided that the officer stay with him.
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Judgment affirmed.