Opinion
21-P-342
01-27-2022
COMMONWEALTH v. Angel O. Perez NARVAEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from an order of a District Court judge allowing the defendant's motion to dismiss one count of a criminal complaint that charged him with throwing a noxious or filthy substance, in violation of G. L. c. 266, § 103. For the reasons that follow, we reverse.
G. L. c. 266, § 103, provides in pertinent part as follows: "Whoever willfully, intentionally and without right throws into, against or upon a ... building ... or puts or places therein or thereon oil of vitriol, coal tar or other noxious or filthy substance, with intent unlawfully to injure, deface or defile such ... building ... or any property therein, shall be punished by imprisonment in the state prison for not more than five years or in jail for not more than two and one half years or by a fine of not more than three hundred dollars."
1. Background. In the early morning of February 10, 2020, a State trooper arrested the defendant for operating a motor vehicle while under the influence of alcohol. The defendant was transported to the State police barracks where he refused to cooperate with the booking process and, as a result, he was placed in a holding cell. Thereafter, as alleged in the application for the criminal complaint, the defendant urinated on the floor inside the cell and through the cell bars onto the floor of the hallway. The defendant also threw wet toilet paper inside and outside the cell into the hallway. The urine seeped into the cracks between the floor tiles and required the services of a company specializing in cleaning hazardous fluids and spills to decontaminate the area.
The defendant was charged in a three-count complaint with throwing a noxious or filthy substance, operating a vehicle under the influence of alcohol, second offense, and a marked lanes violation. Following his arraignment, the defendant moved to dismiss the charge of throwing a noxious or filthy substance on the ground that the charge was not supported by probable cause. After a nonevidentiary hearing, the motion judge agreed with the defendant and concluded that the facts as set forth in the application did not establish probable cause for two reasons. First, the judge noted that urine did not qualify as a noxious or filthy substance; and second, she ruled that the facts did not sufficiently demonstrate that the defendant intentionally "injur[ed], defac[ed] or defil[ed] a building or a vessel."
We note that the application for the criminal complaint states there was probable cause to charge the defendant with defacing or damaging real property, in violation of G. L. c. 266, § 126A. The record does not disclose the reason why the defendant was instead charged with throwing a noxious substance.
"[W]e review the ... judge's probable cause determination de novo." Commonwealth v. Geordi G., 94 Mass. App. Ct. 82, 84 (2018), quoting Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013). "To satisfy the probable cause standard, ‘more than mere suspicion’ is required, but the evidence need not be sufficient to warrant a conviction." Geordi G., supra at 84-85, quoting Commonwealth v. Cartright, 478 Mass. 273, 283 (2017). In conducting our review, we consider only the evidence presented to the clerk-magistrate, which is "viewed in the light most favorable to the Commonwealth." Commonwealth v. Levesque, 436 Mass. 443, 444 (2002). Applying these principles in this case, we reach a different conclusion than the motion judge.
Although the statute does not define the words "noxious" or "filthy," and we are not aware of any case in Massachusetts that has described urine as a noxious or filthy substance, we conclude that there is probable cause to believe that urine qualifies as either or both. In reaching our conclusion, we are guided by the ordinary usage of the words at issue. See Commonwealth v. Keefner, 461 Mass. 507, 511 (2012) (if words used in statute are not otherwise defined within it, we afford words their plain and ordinary meaning). According to the American Heritage College Dictionary 1207 (5th ed. 2016), "noxious" means "harmful to living things," as in "noxious chemical wastes." Filthy is defined as "covered or smeared with filth," as in "disgustingly dirty." Id. at 659. In our view, urine is a substance that it plainly "harmful" or "disgustingly dirty." We are also persuaded by the reasoning in cases from other jurisdictions that have held that urine is a noxious substance. See, e.g., People v. Aponte (Herbert), 994 N.Y.S. 2d 496, 497 (N.Y. App. Div. 2014) (pleading sufficient to establish reasonable cause to believe that defendant was guilty of public urination in violation of antilittering provision prohibiting throwing, putting, or allowing noxious liquid to run or fall into any street or public place); State in the Interest of J.J., 125 So. 3d 1248, 1251 (La. Ct. App. 2013) (juvenile adjudicated delinquent for simple battery for throwing urine on victim because urine was noxious substance); State v. Narmore, 107 Haw. 94 (Haw. Ct. App. 2005) (defendant convicted of criminal use of noxious substance for throwing urine onto victims’ property).
We are not persuaded by the defendant's argument that the rule of statutory construction, ejusdem generis, requires a different result.
In addition, the facts as set forth in the application, including the fact that the defendant urinated inside and outside his cell when a toilet was available, were sufficient to establish that the defendant's acts were willful and intentional. In sum, "[t]he probable cause requirement, which is not particularly burdensome, was satisfied in this case. Commonwealth v. Coggeshall, 473 Mass. 665, 671 (2016).
Order allowing motion to dismiss count one of complaint reversed.