Opinion
11-P-61
03-09-2012
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant was convicted of assault by means of a dangerous weapon. The defendant appeals, claiming that the judge erred in denying his motion for a required finding of not guilty. We affirm.
The relevant facts, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), are as follows. The defendant was a passenger in a car stopped by Boston police officers who were investigating a report of 'shots fired' in the Dorchester neighborhood of Boston. As one of the officers, officer Cepeda, approached the car, the defendant opened the car door and threw a child's car seat at Cepeda, forcing him to jump over the car seat to avoid being hit.
On appeal, the defendant asserts that the Commonwealth failed to prove that the car seat is a dangerous weapon within the meaning of the statute, G. L. c. 265, §15B(b). Determining whether a neutral object, such as a car seat, is a dangerous weapon 'invariably turn[s] on 'use,' and our courts have repeatedly held that ordinary innocuous items can be considered dangerous weapons when used in an improper and dangerous manner.' Commonwealth v. Mattei, 455 Mass. 840, 845 n.11 (2010), quoting from Commonwealth v. Sexton, 425 Mass. 146, 149 (1997). The 'essential question' for the jury is 'whether the object, as used by the defendant, is capable of producing serious bodily harm.' Commonwealth v. Mattei, supra at 844, quoting from Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001).
In this case, the officers testified at various points that the defendant 'launched' the car seat at Cepeda, and that 'it was thrown fast with velocity.' In addition, the jury had the benefit of viewing the actual car seat which was introduced in evidence. This evidence, viewed under the Latimore standard, was sufficient to persuade a rational jury beyond a reasonable doubt that the car seat had been used as a dangerous weapon when the defendant threw it at Cepeda.
Moreover, that Cepeda did not suffer serous bodily harm is not dispositive. As the Supreme Judicial Court has noted, the 'relevant behavior for the offense of assault with a dangerous weapon . . . is an outward demonstration of force, and . . . requires only apparent ability to injure.' Commonwealth v. Appleby, 380 Mass. 296, 305 (1980). See Commonwealth v. Tarrant, 367 Mass. 411, 417 n.5 (1975) (relevant focus in evaluating whether item is a dangerous weapon includes 'whether the victim could reasonably have feared impending harm '). Although a reasonable trier of fact might have reached a different conclusion, the issue was properly submitted to the jury. See Commonwealth v. Appleby, supra at 307 n.5 ('[T]he question whether a weapon is dangerous as used is always one for the fact finder'). Accordingly, the motion for a required finding of not guilty was correctly denied.
Judgment affirmed.
By the Court (Katzmann, Vuono & Meade, JJ.),