Opinion
21-P-148
04-12-2022
COMMONWEALTH v. Leroy ROGERS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of threatening to commit a crime in violation of G. L. c. 275, § 2. On appeal, he claims there was insufficient evidence to establish that he intended the victim to hear his threats, insufficient evidence to prove the defendant intended to harm the victim, and he also claims that the victim's apprehension was not objectively reasonable. We affirm.
The defendant was acquitted of a second count of threatening to commit a crime and one count of criminal harassment. The judge allowed a motion for a required finding of not guilty on a second charge of criminal harassment.
1. The defendant intended the victim to hear his threats. "The elements of threatening a crime include an expression of intention to inflict a crime on another person 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), cert. denied, 532 U.S. 980 (2001). In the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the defendant, on whom the victim had served two eviction notices, banged on the victim's walls, shouted obscenities outside her apartment, and made obscene gestures directly at her security cameras. Among the things shouted by the defendant was that he was "going to knock [the victim's] teeth out, put [her] in a body bag, and bury [her] six feet deep." His voice was loud enough to be heard from the street outside the residence. The victim also heard the defendant instruct his girlfriend how to hit the victim with a baseball bat, and that he had "Googled" the victim to ensure that she was not a senior citizen.
The defendant's girlfriend shouted to the defendant that "she was saying what she had to say loud and proud enough -- loud enough for the [victim and her daughter] to hear it."
The punishment for assault and battery on a person over sixty years of age is greater than if the victim is under sixty years of age. Compare G. L. c. 265, § 15A (a ), with G. L. c. 265, § 15A (b).
Under the circumstances described above, a rational fact finder could conclude that the defendant intended the victim to hear his threats. See Latimore, 370 Mass. at 677. This conclusion is buttressed by the context in which the threats were made, i.e., the victim had recently served eviction notices on the defendant, see Sholley, supra at 725, and by the defendant's behavior and tone of voice. Contrast Commonwealth v. Troy T., 54 Mass. App. Ct. 520, 527 (2002) (no intent to communicate threat where "nothing indicates that the juvenile made his comment at an abnormal vocal level, glanced at [the victim] or other nonparticipants as he made it, [or] gestured in an attention-seeking fashion").
The defendant claims that he did not intend the victim to hear the threats because he told his girlfriend "to keep quiet," and the victim only heard the threats because she was eavesdropping. These claims merely offer a contradiction of the Commonwealth's evidence recited above. See Cramer v. Commonwealth, 419 Mass. 106, 112 (1994) ("the mere fact of contradiction does not mean that the Commonwealth's proof deteriorated"). In fact, "to indulge this argument, we would have to view the evidence in the light least favorable to the Commonwealth, which, of course, we cannot do." Commonwealth v. Arias, 78 Mass. App. Ct. 429, 435 (2010).
2. Intent to threaten and the victim's apprehension. The defendant also claims the evidence was insufficient to establish that he intended to threaten the victim because the victim called the police to have the defendant's car moved -- it was blocking the driveway -- not because the defendant had just threatened her. The defendant finds further support of his claimed lack of intent in the fact that despite the police responding three times to the residence, the defendant was not arrested. We disagree.
A defendant's "knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial." Commonwealth v. Casale, 381 Mass. 167, 173 (1980). Standing alone, the words uttered by the defendant were unambiguous threats to knock the victim's teeth out, put her in a body bag, and bury her six feet deep. See Commonwealth v. Meier, 56 Mass. App. Ct. 278, 280-281 (2002). Moreover, it was reasonable for the jury to infer from the broader context of the statements that the defendant intended them as threats. The victim bought the three-family residence with the intention of her moving into the first-floor apartment, her daughter would move into the second-floor apartment, and her son would move into the third-floor apartment. However, at the time of the purchase, the defendant and his girlfriend were living in the third-floor apartment. After the defendant was served with eviction notices, his campaign of rude and threatening behavior began. From all the circumstances, it was a reasonable and possible inference that the defendant intended the threats. See Casale, supra at 173 ("inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable").
That the police did not arrest the defendant does not evince a lack of intent by the defendant. Police officers may only make warrantless arrests for misdemeanors involving breaches of the peace committed in the officer's presence. Commonwealth v. Grise, 398 Mass. 247, 249 n.2 (1986). None of the defendant's threats were made in the presence of the police.
Finally, the defendant claims that there was insufficient evidence that the threats were made in circumstances that would objectively justify the victim's apprehension. See Commonwealth v. Kerns, 449 Mass. 641, 653 n.18 (2007). We disagree.
Apprehension is assessed under an objective standard. See id. The threat must be made in circumstances that would reasonably justify apprehension on the part of an ordinary person. See Commonwealth v. Milo M., 433 Mass. 149, 151 (2001) ; Commonwealth v. Robicheau, 421 Mass. 176, 184 (1995). The relevant inquiry permits consideration of the context and surrounding circumstances leading up to and during the threat, including the defendant's demeanor at the time the threat was made. See Milo M., supra at 155-158. See also Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 436 (2004).
In the circumstances here, in addition to the threats themselves, the defendant's behavior towards the victim was aggressive and intimidating. He had banged on her walls, shouted obscenities outside her apartment, and made obscene gestures to her security camera. Most pointedly, the defendant shouted out his plan to have his girlfriend beat the victim with a baseball bat. This plan was so thoroughly devised as to include the defendant's internet research on the victim's age to avoid any charge of assault and battery on a senior citizen. To breathe life into the plan, the defendant's girlfriend then went downstairs and swung the bat in front of the victim's security camera. From these circumstances, the jury could rationally conclude that the defendant's threats were genuine, and the victim's apprehension was objectively reasonable. See Maiden, 61 Mass. App. Ct. at 436.
Judgment affirmed.