Opinion
No. 11–P–550.
2012-05-18
COMMONWEALTH v. Darren SPLAINE.
By the Court (GRASSO, BERRY & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury found the defendant guilty of armed assault with intent to rob, assault by means of a dangerous weapon, assault and battery on a public employee, and resisting arrest. The charges arose from the defendant's attempt to rob the Broadway Market in Arlington, holding a knife in his fist while demanding money from the employee behind the cash register. Two employees chased the defendant out of the store and down the street. Police officers, with the help of a police dog, were able to locate the defendant, who (among other things) struck one of the officers while being arrested. On appeal the defendant argues that (a) hearsay was incorrectly admitted, and (b) there was insufficient evidence of an attempted battery. We affirm.
The defendant was acquitted of one count of assault and battery by means of a dangerous weapon.
1. Hearsay. Officer Wilkins, who was on patrol, saw the defendant chased down the street by the store employees, and followed them for as long as he could while in his patrol car. After he returned to the store to interview the employees, Wilkins met with K–9 Officer Hogan, who had been called to the scene. Hogan testified that Wilkins told him that the defendant had gone into a yard, “which would head over toward Oxford Street.” The defendant argues that this statement was inadmissible hearsay. We disagree. The statement was not admitted for its truth, but rather for the limited purpose of explaining Hogan's state of mind as he decided how to conduct the canine search. It was, therefore, not hearsay. See Mass. G. Evid. 801(c) (2011) (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). Moreover, the statement was clearly relevant. “We have explained that ‘an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct.’ “ Commonwealth v. Rosario, 430 Mass. 505, 508 (1999), quoting from Commonwealth v. Cohen, 412 Mass. 375, 393 (1992). Finally, the judge gave a careful instruction at the time the statement was admitted, advising the jury of the limited purpose for which they could consider the statement. Thus, even were we to assume arguendo that the statement was inadmissible hearsay, we presume that the jury followed the judge's instruction and accordingly the statement's admission resulted in no prejudice. See Commonwealth v. Montez, 450 Mass. 736, 746 (2008). 2. Sufficiency of the evidence. An assault may be “committed either as an attempted battery or an immediately threatened battery.” Commonwealth v. Arias, 78 Mass.App.Ct. 429, 431 (2010). The trial judge instructed the jury on both theories, but the general verdict slips did not require them to identify the theory upon which the convictions were based. The defendant argues that there was insufficient evidence of an attempted battery and, accordingly, his convictions of assault by means of a deadly weapon and assault with intent to rob must be reversed because one cannot know upon which theory the jury rested their verdicts. Commonwealth v. Purrier, 54 Mass.App.Ct. 397, 400–401 (2002). We disagree.
“Jurors, the statement that is going to be elicited, I just want to let you know the purpose of this is for the effect on the officer and what he heard not for the truth of the assertion itself.”
The defendant concedes that the evidence was sufficient to prove an immediately threatened battery.
“Under the attempted battery theory, the Commonwealth must prove that the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so.” Commonwealth v. Melton, 436 Mass. 291, 295 (2002). Arias, 78 Mass.App.Ct. at 434. We consider the evidence in the light most favorable to the Commonwealth to determine whether a rational trier of fact could have found each element of the crimes beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). There was sufficient evidence that the defendant intended to commit a battery. The defendant entered the store, moved quickly toward the counter and stood three to four feet from the victim holding a knife in his fist. The defendant demanded that the victim sit down and give him the money. From this evidence the jury could reasonably infer that the defendant intended to use the knife to harm or offensively touch the victim. See Purrier, 54 Mass.App.Ct. at 401.
In assessing whether the defendant committed an overt act such that he had “the present opportunity to commit the substantive crime[,] ... we look to the actions left to be taken, or the ‘distance or gap between the defendant's actions and the (unachieved) goal of the consummated crime—the distance must be relatively short, the gap narrow, if the defendant is to be held guilty of a criminal attempt.’ “ Commonwealth v. Bell, 455 Mass. 408, 415 (2009), quoting from Commonwealth v. Hamel, 52 Mass.App.Ct. 250, 258 (2001). Holding a knife in his fist, the defendant quickly moved within three to four feet of the victim; in other words, he positioned himself close enough to strike. The defendant was then disrupted when another employee threw a bottle at him. By that point, however, all that remained to accomplish a battery was for the defendant to reach out and touch the victim with the knife. The distance between the defendant's actions and a completed battery was thus quite short. See Purrier, 54 Mass.App.Ct. at 402 (sufficient evidence of assault on attempted battery theory where defendant “came close to the commission of a battery” but for the intervention of a third party). The defendant's actions “put him so near—in time [and] ability—to the completion of the crime as to be guilty of attempt.” Bell, 455 Mass. at 416.
For these reasons, the convictions are affirmed.
Judgments affirmed.