Opinion
15-P-42
03-18-2016
COMMONWEALTH v. BRIAN RODRIGUES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in District Court, the defendant was convicted of threatening to commit a crime, G. L. c. 275, § 2. On appeal, the defendant argues that (1) the evidence was insufficient to establish that his statements caused the victims' reasonable fear, and (2) counsel was ineffective for failing to file a motion to dismiss based on duplicative charges and for failing to request a specific unanimity instruction. We affirm.
The defendant's original brief raised only the claim of insufficient evidence. At argument, the defendant's appellate counsel, having only recently entered her appearance, sought leave to supplement the defendant's brief to raise additional issues. We allowed that request and the defendant filed a supplemental brief raising the claim of ineffective assistance of counsel.
Background. We summarize the evidence the jury could have found, viewing it in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On January 16, 2013, Paul Molineaux, a substitute teacher at Stoughton High School, was assigned to supervise study hall in the cafeteria. After observing a student, the defendant Brian Rodrigues, in the cafeteria for multiple periods, he asked Rodrigues to return to his assigned class. When Rodrigues refused, Molineaux called Edward Hoyle, the hall monitor, to escort Rodrigues out of the cafeteria.
Hoyle confirmed that Rodrigues was not assigned to the cafeteria, and ordered Rodrigues to the office. Rodrigues refused and went to the restroom. After Rodrigues exited the restroom, Hoyle again ordered Rodrigues to the office. Rodrigues refused and the two exchanged words. Rodrigues began screaming. Hearing the noise, Molineaux and Christian Perry, the dean of discipline, came to assist Hoyle.
As Molineaux approached, Rodrigues looked directly at him and stated that he would "take [you] out after school, fat boy." As the men escorted Rodrigues to the office, Rodrigues stated that he would take them outside and "whoop" them, and that if he saw them on the street and his older brother was there, he would "kick [their] ass." Hoyle took this threat seriously and believed that Rodrigues would carry it out. Michael O'Neil, the assistant principal, entered the hallway from his office and also heard Rodrigues state "I'm going to kick your ass." The witnesses described Rodrigues's demeanor as "angry," "very loud," "upset," "mean," and "volatile."
Discussion. Sufficiency of evidence. Rodrigues contends that the judge erred in denying his motion for a required finding of not guilty at the end of the Commonwealth's case and again at the close of all the evidence because there was insufficient evidence that his statements caused Hoyle, Molineaux, and Perry reasonable apprehension. When reviewing a motion for a required finding of not guilty, we review the evidence in the light most favorable to the Commonwealth to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Latimore, supra at 678.
"The elements of threatening a crime include 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, 724-725 (2000), quoting from Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). The threat need not cause actual fear or apprehension in the victim. Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 436 (2004). Instead, the test is an objective one, "whether the threat by its content in the circumstances was such as would cause the target of the threat to fear that the threatened crime or injury might be inflicted." Ibid. When determining whether an apprehension of anticipated physical force is reasonable, we "consider the entire context in which a statement is made, including the defendant's actions and demeanor at the time." Commonwealth v. Troy T., 54 Mass. App. Ct. 520, 528 (2002).
Here, Rodrigues, in close proximity to Hoyle, Molineaux, and Perry, told them that he was going to "kick [their] ass," and that he and his brother would "whoop" them in the street. In addition, there was evidence that Rodrigues was angry and loud when he uttered the threats time and again. Molineaux and Hoyle testified that they took Rodrigues's statements seriously and thought that he would carry them out. While there was no evidence that Rodrigues touched the victims, the jury could reasonably have inferred from Rodrigues's statements and demeanor, that Hoyle, Molineaux, and Perry feared that Rodrigues would carry out the threats. See Sholley, supra at 726 n.5 ("It is of no consequence that the threat pertained to some uncertain time in the future").
We note that the defendant was nineteen years old at the time and apparently quite large. At sentencing the judge stated, "[Y]ou're a big young man and you're an imposing figure." The defendant's size would have been apparent to the jury during trial and could have been considered by them in evaluating the reasonableness of the victims' fear.
Rodrigues's suggestion that the Commonwealth's case deteriorated after the presentation of the defense case is equally unavailing. "Deterioration only occurs where the Commonwealth's evidence of necessary elements 'is later shown to be incredible or conclusively incorrect.'" Commonwealth v. Gomez, 450 Mass. 704, 710 (2008), quoting from Commonwealth v. O'Laughlin, 446 Mass. 188, 203 (2006). "'Deterioration' does not mean a conflict in the evidence which arises in the course of the defendant's case." Commonwealth v. Hastings, 22 Mass. App. Ct. 930, 931 (1986). Here the defense case consisted primarily of the defendant's denials of the claims made by the Commonwealth's witnesses. Such a conflict is for the jury to sort out and is not material to the motion for required finding. Ibid. We discern no error in the trial judge's denial of Rodrigues's motion for a required finding of not guilty.
Ineffective assistance of counsel. The defendant claims that trial counsel was constitutionally ineffective for failure to move to dismiss the complaint on the basis of duplicative charges, and failure to request a specific unanimity instruction. More specifically, the defendant suggests that a threat to commit a crime must be targeted at a particular individual and, in the circumstances of this case, where there was evidence of threats against multiple individuals, the jury should have been instructed that that they must unanimously decide which specific act constitutes the offense charged. The Commonwealth counters that a motion to dismiss based on duplicative charges would have been meritless where the defendant threatened school personnel in one continuous event, and specific unanimity is not required where the defendant's actions constituted one continuous episode. We need not resolve the dispute here because "the preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). There is a narrow exception in cases where "the factual basis of the claim appears indisputably on the trial record." Id. at 811, quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). The bases of the defendant's claims here do not appear indisputably on the record. The record is silent as to trial counsel's strategy or any explanation for his actions. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002).
Judgment affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 18, 2016.