Opinion
20-P-1406
04-22-2022
COMMONWEALTH v. Jeffrey E. LOGAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of disturbing the peace and disorderly conduct, see G. L. c. 272, § 53, as well as witness intimidation, see G. L. c. 268, § 13B (1) (c ) (i). He appeals, contending that the Commonwealth presented insufficient evidence to support any of the three convictions. We affirm.
The defendant was initially charged with carrying a firearm without a license, discharging a firearm within 500 feet of a building, unlawful possession of ammunition, and assault by means of a dangerous weapon. The first three offenses were nolle prossed by the Commonwealth. He was acquitted of the assault charge. The defendant was sentenced to two years' incarceration on the witness intimidation conviction, with credit for time served. The convictions for disturbing the peace and disorderly conduct were placed on file. There is no appeal where a defendant consents to placing a conviction on file. However, there was no affirmative showing of consent by the defendant to placing the convictions on file. See Commonwealth v. Simmons, 448 Mass. 687, 700 (2007) (underscoring "the necessity of colloquy confirming consent" and referring to the rules committee). See also Mass. R. Crim. P. 28 (e), 453 Mass. 1501 (2009). The parties therefore agree that the appeal from all three convictions is properly before us. Simmons, supra.
Background. In the light most favorable to the Commonwealth, the facts are as follows. Between 10 P.M. and 10:30 P.M. on February 12, 2019, a high school student was shoveling snow outside a building owned by his godfather. The defendant, who lived in the building, came outside and complimented the teenager's shoveling. The defendant continued to talk but the teenager did not "really get what he was saying." The defendant went back inside but came back out a few minutes later. After a few more minutes of conversation, the defendant told the teenager to look out front for a black car. The defendant then took out what appeared to be a small silver handgun and, standing between two feet and two inches from the teenager's head, pointed the gun in the air and fired twice. The teenager was scared and feared for his life. The defendant told the teenager not to tell anybody and said "he was coming back."
The teenager walked to his godfather's office. He was afraid that the defendant might follow him, and appeared to his godfather to be distressed and shocked. He also had trouble hearing. The godfather brought the teenager to the police station, where the teenager identified a photograph of the defendant, shown to him by his godfather, as the man who fired the gun.
When the defendant was arrested, a small black and silver gun with "a single stack clip" was found near his bed. The parties stipulated that the gun was a blank pistol incapable of firing live rounds of ammunition.
Discussion. In reviewing the defendant's claims, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Accime, 476 Mass. 469, 472 (2017).
1. Disturbing the peace. "A two-part test is used to determine whether a defendant's conduct constitutes disturbing the peace. It proscribes activities which, first, most people would find to be unreasonably disruptive, and second, did in fact infringe someone's right to be undisturbed. The first prong is normative and protects potential defendants from prosecutions based on individual sensitivities. The second prong requires that the crime have a victim, and thus subjects potential defendants to criminal prosecution only when their activities have detrimental impact. Time and place are factors to be considered in determining whether activities are unreasonably disruptive" (quotations and citations omitted). Commonwealth v. Hokanson, 74 Mass. App. Ct. 403, 405 (2009). Most people would find the discharge of a gun at night to be disruptive, and all would be frightened by having a stranger shoot an apparently real gun close to their head. The teenager testified that he was in fact afraid for his life and feared the defendant. The evidence was sufficient.
2. Disorderly conduct. "[T]he disorderly conduct provision in § 53 requires proof that a person, ‘with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,’ engaged in ‘fighting or threatening, or in violent or tumultuous behavior’ or created ‘a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.’ " Accime, 476 Mass. at 472-473, quoting Commonwealth v. Sholley, 432 Mass. 721, 727 n.7 (2000), cert. denied, 532 U.S. 980 (2001). A rational jury could have found that shooting what appeared to be a gun in close proximity to an unsuspecting person was an intentional act that caused alarm to at least one person; that the shooting was, at a minimum, threatening, loud, and physically offensive; and that shooting the blank gun at night in a residential area would alarm the residents and served no legitimate purpose. See Sholley, supra; Commonwealth v. Molligi, 70 Mass. App. Ct. 108, 111–112 (2007). Accordingly, the evidence was sufficient.
3. Witness Intimidation. "[T]o convict the defendant of witness intimidation under G. L. c. 268, § 13B (1) (c ) (i), the Commonwealth had to prove that (1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding. The Commonwealth was not required to prove that an actual crime had occurred or that a criminal investigation was in progress when the alleged intimidation occurred." Commonwealth v. Fragata, 480 Mass. 121, 126–127 (2018).
For the reasons stated above, shooting what appeared to be a gun constituted a possible violation of G. L. c. 272, § 53 (a violation which was investigated and for which the defendant was charged and convicted). The discharge of what appeared to be a handgun would also trigger an investigation of possible violations of the firearms statutes. Such an investigation took place and resulted in multiple charges. See n.1, supra. The teenager was the sole witness known to the defendant, and a reasonable jury could have found that when the defendant, silver gun in hand, told the teenager not to tell anyone, he did so in order to "impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding." Fragata, 480 Mass. at 126-127. The evidence was sufficient.
Judgments affirmed.