Opinion
No. 12–P–663.
2013-04-5
COMMONWEALTH v. Rashief STALLINGS.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was found guilty of assault and battery by means of a dangerous weapon and breaking and entering a building in the nighttime with intent to commit a felony. The defendant filed a timely notice of appeal and posits three arguments for his challenge to the breaking and entering conviction. First, he contends that there was no evidence of a breaking, as required under the statute. Second, he claims that his entry was privileged or licensed by past cumulative practice. And third, he argues that there was no intent to commit a felony within the building. We affirm.
Discussion. “We review the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Rabb, 70 Mass.App.Ct. 194, 208–209 (2007). 1. Breaking. The victim's brownstone apartment building had a malfunctioning front door. Although it was “locked,” it was common knowledge that it could be opened without a key by jiggling the handle. The defendant contends that his entry into the building was not the result of a break.
“In this Commonwealth the opening of a closed but unlocked door or window is a breaking.” Commonwealth v. Lewis, 346 Mass. 373, 377 (1963). See Commonwealth v. Callagy, 33 Mass.App.Ct. 85, 90 (1992). The defendant argues that the Commonwealth could not meet its burden because there was evidence that occasionally the door remained slightly ajar instead of latching shut. However, there was no evidence to suggest that the victim left the door open or slightly ajar when he went to Walgreens. It was therefore a reasonable inference for the fact finder to conclude that the victim shut the door and that the defendant jiggled the knob to gain entry.
Nor is there any merit to the defendant's contention that he could not be convicted of the crime because he was in an unsecured hallway. The defendant was convicted of breaking and entering into a building. “The entry of any part of the defendant's body into any part of the building suffices to prove the crime.” Commonwealth v. Scott, 71 Mass.App.Ct. 596, 601 (2008). Whether the defendant entered the victim's apartment is irrelevant. It is enough that he was present in the building itself. Therefore, because there was evidence to show that the defendant gained entry by jiggling the door knob, the Commonwealth established the “breaking” element.
2. Entry. The victim frequently hosted the defendant as a social guest, and there was evidence that the defendant often let himself in the apartment building by manipulating the malfunctioning door. The defendant therefore argues that he did not unlawfully enter the building because his entry was privileged and consensual, based on this past conduct. For support, the defendant relies on Commonwealth v. Fleming, 46 Mass.App.Ct. 394 (1999), a case in which this court reversed a conviction for assault in a dwelling because the evidence tended to show that the defendant had established a license or privilege to enter the dwelling. “An entry ... by an armed person into a dwelling [footnote omitted] in response to an invitation from a person living there rather obviously is not a violation of the statute.” Id. at 396. His reliance is misplaced. Here, the evidence showed that almost all of the social visits were prompted by an invitation from the victim. If the defendant showed up unannounced, he would routinely ring the buzzer before entering. There were even instances where the defendant was denied entry. On the night of the incident, it is uncontroverted that the defendant was not invited by the victim. Based on this evidence, a rational trier of fact could have found that, invitations being the regular course of conduct, the defendant had never established a privilege to enter the apartment building. Moreover, Fleming was based on the failure to instruct the jury about the defendant's privilege to enter. See Fleming, supra. Because this trial was jury-waived, the judge is assumed to have correctly instructed himself on the proper application of the law. See Commonwealth v. Batista, 53 Mass.App.Ct. 642, 648 (2002). Accordingly, the judge correctly denied the defendant's motion on this ground.
3. Intent to commit a felony. Finally, the defendant claims that the evidence did not support a conclusion that he had the intent to commit a felony when he entered the building. Contrary to his assertion, however, the record shows ample evidence that the defendant intended to assault the victim. One of the defendant's coworkers testified that, a few months before the incident, the defendant had become very upset that a friend who lived across the street had made a sexual move on him. The coworker also testified that a few weeks later, the defendant claimed that the same friend was “making voodoo on me and next time I see him I'll stop him.” In addition, the actual attack further established the felonious intent. See Commonwealth v. Perron, 11 Mass.App.Ct. 915, 917 (1981) (“The requisite felonious intent may be inferred from the actual commission of the felonious act ...”). Based on this evidence, a rational trier of fact could have found the requisite intent at the time of entry.
The defendant argues that he did not have the intent to commit larceny once inside. The crime does not require intent to commit larceny. It simply requires the intent to commit a felony. See Commonwealth v. Willard, 53 Mass.App.Ct. 650, 653 (2002).
The victim lived across the street from the Walgreens where the defendant was employed at the time.
Judgments affirmed.